| Page Range | 65121-65603 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 65271 - Sunshine Act Meeting | |
| 80 FR 65228 - Sunshine Act Meetings | |
| 80 FR 65228 - Sunshine Act Meeting | |
| 80 FR 65282 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 80 FR 65281 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 80 FR 65285 - Docket No. FMCSA-2012-0081] | |
| 80 FR 65169 - Energy Conservation Standards for Pool Heaters | |
| 80 FR 65222 - Proposed Agency Information Collection | |
| 80 FR 65220 - Orders Granting Authority To Import and Export Natural Gas, To Import and Export Liquefied Natural Gas, To Vacate Authority, and Denying Request for Rehearing During September 2015 | |
| 80 FR 65255 - Advisory Committee on Reactor Safeguards; Notice of Meeting | |
| 80 FR 65242 - Notice of Intent To Prepare an Environmental Impact Statement for the Greater Crossbow Oil and Gas Project and Possible Amendments to the Casper Resource Management Plan, Wyoming | |
| 80 FR 65235 - South Carolina; Amendment No. 4 to Notice of a Major Disaster Declaration | |
| 80 FR 65234 - South Carolina; Amendment No. 5 to Notice of a Major Disaster Declaration | |
| 80 FR 65161 - Final Flood Elevation Determinations | |
| 80 FR 65284 - Public Notice for Waiver of Aeronautical Land-Use Assurance; Airport Property at Palmer Municipal Airport, Palmer, Alaska | |
| 80 FR 65284 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Aviation Medical Examiner Program | |
| 80 FR 65159 - Approval and Promulgation of State Plans for Designated Facilities; New York | |
| 80 FR 65217 - Agency Information Collection Activities: Notice of Intent To Renew Collection: Clearing Member Risk Management | |
| 80 FR 65251 - Draft 2015 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities | |
| 80 FR 65224 - Performance Partnership Grants | |
| 80 FR 65223 - Clean Air Act Operating Permit Program; Petition for Objection to State Operating Permits for Shell Chemical LP Deer Park Chemical Plant and Shell Oil Company Deer Park Refinery in Texas | |
| 80 FR 65223 - Notification of a Public Teleconference of the Clean Air Scientific Advisory Committee Secondary National Ambient Air Quality Standards Review Panel for Oxides of Nitrogen and Sulfur | |
| 80 FR 65198 - Wooden Bedroom Furniture From the People's Republic of China: Partial Rescission of Antidumping Duty Administrative Review | |
| 80 FR 65200 - Multilayered Wood Flooring From the People's Republic of China: Initiation of Antidumping Duty New Shipper Review; 2013-2014 | |
| 80 FR 65219 - Proposed Information Collection; Comment Request | |
| 80 FR 65174 - Supplemental Comments Sought on Proposed 17/24 GHz Reverse Band BSS Ground Path Operations | |
| 80 FR 65281 - Delegation to Thomas A. Shannon of Authorities Normally Vested in the Under Secretary of State for Political Affairs | |
| 80 FR 65280 - Advisory Committee on International Economic Policy; Notice of Open Meeting | |
| 80 FR 65281 - Notice of Public Meeting | |
| 80 FR 65238 - Draft Habitat Conservation Plan and Draft Environmental Assessment, Meier Group LLC, Thurston County, Washington | |
| 80 FR 65183 - Endangered and Threatened Wildlife; 12-Month Finding on a Petition To Identify and Delist a Saint John River Distinct Population Segment of Shortnose Sturgeon Under the Endangered Species Act | |
| 80 FR 65175 - Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List the Thorny Skate as Threatened or Endangered Under the Endangered Species Act | |
| 80 FR 65135 - Interpretive Bulletin Relating to the Fiduciary Standard Under ERISA in Considering Economically Targeted Investments | |
| 80 FR 65197 - Submission for OMB Review; Comment Request | |
| 80 FR 65240 - Information Collection Request Sent to the Office of Management and Budget (OMB) for Approval; National Survey of Fishing, Hunting, and Wildlife-Associated Recreation (FHWAR) | |
| 80 FR 65248 - Notice of Intent To Award-Grant Awards for the Provision of Civil Legal Services to Eligible Low-Income Clients Beginning January 1, 2016 | |
| 80 FR 65195 - Notice of Intent To Request To Conduct a New Information Collection | |
| 80 FR 65226 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
| 80 FR 65247 - Whistleblower Protection Advisory Committee (WPAC) | |
| 80 FR 65241 - Renewal of Agency Information Collection for the Tribal Reassumption of Jurisdiction Over Child Custody Proceedings | |
| 80 FR 65201 - New England Fishery Management Council; Public Meeting | |
| 80 FR 65215 - Caribbean Fishery Management Council (CFMC); Public Hearings | |
| 80 FR 65214 - Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting | |
| 80 FR 65137 - Drawbridge Operation Regulations; Tchefuncta River, Madisonville, LA | |
| 80 FR 65138 - Drawbridge Operation Regulation; Houma Navigation Canal, Mile 36.0, at Houma, Terrebonne Parish, LA | |
| 80 FR 65282 - Integrated Resource Plan | |
| 80 FR 65243 - Eastern States: Filing of Plats of Survey | |
| 80 FR 65242 - Notice of Filing of Plats of Survey; Arizona | |
| 80 FR 65232 - National Institute of Arthritis and Musculoskeletal and Skin Diseases; Notice of Closed Meeting | |
| 80 FR 65233 - National Human Genome Research Institute; Notice of Closed Meeting | |
| 80 FR 65232 - National Institute of Mental Health; Notice of Meeting | |
| 80 FR 65286 - Pipeline Safety: National Pipeline Mapping System; Extension of Comment Period and Notice of Operator Workshop | |
| 80 FR 65244 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Acquisition and Sale of Trust Real Estate Investment Trust Shares by Individual Account Plans Sponsored by Trust Real Estate Investment Trusts | |
| 80 FR 65252 - Notice of Centennial Challenges 2016 Sample Return Robot (SRR) Challenge | |
| 80 FR 65201 - Takes of Marine Mammals Incidental to Specified Activities; St. George Reef Light Station Restoration and Maintenance at Northwest Seal Rock, Del Norte County, California | |
| 80 FR 65287 - Sanctions Actions Pursuant to Executive Orders 13224 | |
| 80 FR 65138 - Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, John F. Kennedy Space Center/NASA Parkway Bridge, Addison Point, FL | |
| 80 FR 65218 - Agency Information Collection Activities; Proposed Collection; Comment Request; Baby Bouncers and Walker-Jumpers | |
| 80 FR 65197 - Notice of Public Meeting of the Oklahoma Advisory Committee To Discuss Findings and Recommendations Resulting From Its Inquiry Into the Civil Rights Impact of School Disciplinary Policies That May Contribute to High Rates of Juvenile Incarceration in Oklahoma | |
| 80 FR 65196 - Public Meeting of the Mississippi Advisory Committee; Advisory Memorandum Regarding Civil Rights Concerns Relating to Distribution of Federal Child Care Subsidies in Mississippi | |
| 80 FR 65229 - National Environmental Policy Act; Environmental Assessments for Tobacco Products; Categorical Exclusions-Small Entity Compliance Guide; Guidance for Industry; Availability | |
| 80 FR 65255 - Sizing of Large Lead-Acid Storage Batteries | |
| 80 FR 65288 - Agency Information Collection (Supplement to VA Forms 21P-4706b, 21P-4706c and 21-4718a) Activity Under OMB Review | |
| 80 FR 65252 - Notice of Information Collection | |
| 80 FR 65225 - Information Collections Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
| 80 FR 65214 - Takes of Marine Mammals Incidental to Specified Activities; Rehabilitation of the Jetty System at the Mouth of the Columbia River, Washington and Oregon | |
| 80 FR 65134 - Automated Commercial Environment (ACE) Filings for Electronic Entry/Entry Summary (Cargo Release and Related Entry); Correction | |
| 80 FR 65236 - Notice of Public Meeting Regarding Standards for Information Sharing and Analysis Organizations | |
| 80 FR 65235 - President's National Security Telecommunications Advisory Committee | |
| 80 FR 65244 - Certain Coaxial Cable Connectors and Components Thereof and Products Containing Same Commission Determination Not To Review an Initial Determination Terminating the Investigation in Its Entirety Based Upon Withdrawal of the Complaint | |
| 80 FR 65256 - Change in Postal Rates | |
| 80 FR 65237 - Intent To Request Renewal From OMB of One Current Public Collection of Information: Office of Law Enforcement/Federal Air Marshal Service Mental Health Certification | |
| 80 FR 65195 - Submission for OMB Review; Comment Request | |
| 80 FR 65258 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Disaster Recovery | |
| 80 FR 65228 - Notice to All Interested Parties of the Termination of the Receivership of 4556 Meritor Savings Bank Philadelphia, Pennsylvania | |
| 80 FR 65227 - Notice to All Interested Parties of the Termination of the Receivership of 10360, Cortez ommunity Bank Brooksville, Florida | |
| 80 FR 65228 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 80 FR 65226 - Notice of Debarment; Federal Lifeline Universal Service Support Mechanism | |
| 80 FR 65287 - Intelligent Transportation Systems Program Advisory Committee; Notice of Meeting | |
| 80 FR 65266 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To List and Trade Shares of the First Trust Heitman Global Prime Real Estate ETF Under NYSE Arca Equities Rule 8.600 | |
| 80 FR 65277 - Self-Regulatory Organizations: Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Exchange Rule 404 | |
| 80 FR 65263 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 19.3 To Allow the Listing of Certain Options Based on International Indexes | |
| 80 FR 65271 - Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Implement An Order Exposure Alert To Be Disseminated by the Exchange | |
| 80 FR 65274 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving Proposed Rule Change, and Notice of Filing and Order Granting Accelerated Approval of Amendment No. 1 Thereto, Adopting New Equity Trading Rules Relating to Trading Halts, Short Sales, Limit Up-Limit Down, and Odd Lots and Mixed Lots To Reflect the Implementation of Pillar, the Exchange's New Trading Technology Platform | |
| 80 FR 65279 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.13, Order Execution and Routing | |
| 80 FR 65269 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Clearing Services for European Natural Gas Spot Contracts | |
| 80 FR 65246 - The 1,3-Butadiene Standard; Extension of the Office of Management and Budget's (OMB) Approval of Information Collection (Paperwork) Requirements | |
| 80 FR 65254 - Information Collection: Physical Protection of Category 1 and Category 2 Quantities of Radioactive Material | |
| 80 FR 65165 - Offshore Supply Vessels, Towing Vessel, and Barge Engine Rating Watches | |
| 80 FR 65231 - National Institute of Diabetes and Digestive and Kidney Diseases Notice of Closed Meetings | |
| 80 FR 65233 - National Institute of General Medical Sciences; Notice of Closed Meetings | |
| 80 FR 65231 - National Institute of General Medical Sciences; Notice of Closed Meetings | |
| 80 FR 65233 - Center for Scientific Review; Notice of Closed Meeting | |
| 80 FR 65253 - Advisory Committee for Mathematical and Physical Sciences; Notice of Meeting | |
| 80 FR 65234 - Information Collection Request to Office of Management and Budget; OMB Control Number: 1625-0033 | |
| 80 FR 65130 - Airworthiness Directives; The Boeing Company Airplanes | |
| 80 FR 65121 - Airworthiness Directives; The Boeing Company Airplanes | |
| 80 FR 65128 - Airworthiness Directives; Sikorsky Aircraft Corporation Helicopters | |
| 80 FR 65149 - Domestic Competitive Products Pricing and Mailing Standards Changes | |
| 80 FR 65139 - International Product and Price Changes | |
| 80 FR 65216 - Notice of Meeting | |
| 80 FR 65572 - General Provisions and Non-Federal Oil and Gas Rights | |
| 80 FR 65288 - Debt Management Advisory Committee Meeting | |
| 80 FR 65173 - Notice of Availability: CPSC Plan for Retrospective Review of Existing Rules | |
| 80 FR 65174 - Petition Requesting Rulemaking on Products Containing Organohalogen Flame Retardants; Notice of Extension of Comment Period; Notice of Opportunity for Oral Presentation of Comments | |
| 80 FR 65280 - Senior Executive Service: Performance Review Board Members | |
| 80 FR 65126 - Airworthiness Directives; Fokker Services B.V. Airplanes | |
| 80 FR 65292 - National Ambient Air Quality Standards for Ozone | |
| 80 FR 65470 - NESHAP for Brick and Structural Clay Products Manufacturing; and NESHAP for Clay Ceramics Manufacturing |
Animal and Plant Health Inspection Service
National Agricultural Statistics Service
International Trade Administration
National Oceanic and Atmospheric Administration
Energy Efficiency and Renewable Energy Office
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Transportation Security Administration
U.S. Customs and Border Protection
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
National Park Service
Employee Benefits Security Administration
Occupational Safety and Health Administration
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Pipeline and Hazardous Materials Safety Administration
Foreign Assets Control Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are superseding Airworthiness Directive (AD) 2015-19-02 for all The Boeing Company Model 767 airplanes. AD 2015-19-02 required revising the maintenance or inspection program to include new airworthiness limitations. This AD continues to require a maintenance or inspection program revision, but with revised language. This AD was prompted by a determination that certain language in the airworthiness limitation was not accurate in AD 2015-19-02. We are issuing this AD to detect and correct latent failures of the fuel shutoff valve to the engine and auxiliary power unit (APU), which could result in the inability to shut off fuel to the engine and APU and, in case of certain fires, an uncontrollable fire that could lead to structural failure.
This AD is effective October 28, 2015.
We must receive any comments on this AD by December 10, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6509; fax: 425-917-6590; email:
On September 7, 2015, we issued AD 2015-19-02, Amendment 39-18265 (80 FR 55512, September 16, 2015), for all The Boeing Company Model 767 airplanes. AD 2015-19-02 required revising the maintenance or inspection program to include new airworthiness limitations. AD 2015-19-02 resulted from reports of latently failed fuel shutoff valves discovered during fuel filter replacement. We issued AD 2015-19-02 to detect and correct latent failures of the fuel shutoff valve to the engine and APU, which could result in the inability to shut off fuel to the engine and APU and, in case of certain fires, an uncontrollable fire that could lead to structural failure.
Since we issued AD 2015-19-02, Amendment 39-18265 (80 FR 55512, September 16, 2015), we have determined that extraneous language was included in two locations of the text of the airworthiness limitations specified in AD 2015-19-02. In paragraph C.7.a. of the “Description” column of figure 1 to paragraph (g) of AD 2015-19-02, the text “or the APU selector switch on the overhead panel is in the ON position” is not relevant to the actions specified in that paragraph. In paragraph A.5. of the “Description” column of figure 3 to paragraph (g) of AD 2015-19-02, the text “the FUEL CONTROL switch is in the RUN position or” is not relevant to the actions specified in that paragraph.
We have determined that the language must be corrected to avoid any confusion in the paragraphs of the airworthiness limitation. We are issuing this AD to detect and correct latent failures of the fuel shutoff valve to the engine and APU, which could result in the inability to shut off fuel to the engine and APU and, in case of certain fires, an uncontrollable fire that could lead to structural failure.
We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires revising the maintenance or inspection program to include new airworthiness limitations.
We consider this AD interim action. The manufacturer is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we might consider additional rulemaking.
We are superseding AD 2015-19-02, Amendment 39-18265 (80 FR 55512, September 16, 2015), to correct inaccurate terminology in the
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 450 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 28, 2015.
This AD replaces AD 2015-19-02, Amendment 39-18265 (80 FR 55512, September 16, 2015).
This AD applies to all The Boeing Company Model 767-200, -300, -300F, and -400ER series airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 28, Fuel.
This AD was prompted by reports of latently failed fuel shutoff valves discovered during fuel filter replacement. We are issuing this AD to detect and correct latent failures of the fuel shutoff valve to the engine and auxiliary power unit (APU), which could result in the inability to shut off fuel to the engine and APU and, in case of certain fires, an uncontrollable fire that could lead to structural failure.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to add airworthiness limitation numbers 28-AWL-ENG, 28-AWL-MOV, and 28-AWL-APU, by incorporating the information specified in figure 1, figure 2, and figure 3 to paragraph (g) of this AD into the Airworthiness Limitations Section of the Instructions for Continued Airworthiness. The initial compliance time for accomplishing the actions specified in figure 1, figure 2, and figure 3 to paragraph (g) of this AD is within 10 days after accomplishing the maintenance or inspection program revision required by this paragraph.
After accomplishment of the maintenance or inspection program revision required by paragraph (g) of this AD, no alternative actions (
(1) The Manager, Seattle Aircraft Certification Office (ACO) FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6509; fax: 425-917-6590; email:
None.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Fokker Services B.V. Model F.27 Mark 200, 300, 400, 500, 600, and 700 airplanes. This AD was prompted by a design review, which revealed that no controlled bonding provisions are present on a number of critical locations inside the fuel tank or connected to the fuel tank wall; and no anti-spray cover is installed on the fuel shut-off valve (FSOV) in both wings. This AD requires installing additional bonding provisions in the fuel tank, installing an anti-spray cover on the FSOV, and revising the airplane maintenance program by incorporating fuel airworthiness limitation items and critical design configuration control limitations. We are issuing this AD to prevent an ignition source in the fuel tank vapor space, which could result in a fuel tank explosion and consequent loss of the airplane.
This AD becomes effective November 30, 2015.
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Fokker Services B.V. Model F.27 Mark 200, 300, 400, 500, 600, and 700 airplanes. The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0099, dated April 30, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Fokker Services B.V. Model F.27 Mark 200, 300, 400, 500, 600, and 700 airplanes. The MCAI states:
Prompted by an accident * * *, the FAA published Special Federal Aviation Regulation (SFAR) 88 [(66 FR 23086, May 7, 2001)], and the Joint Aviation Authorities (JAA) published Interim Policy INT/POL/25/12.
The review conducted by Fokker Services on the Fokker 27 design in response to these regulations revealed that no controlled bonding provisions are present on a number of critical locations, inside the fuel tank or connected to the fuel tank wall, and no anti-spray cover is installed on the Fueling Shut-Off Valve (FSOV) in both wings.
This condition, if not corrected, could create an ignition source in the fuel tank vapour space, possibly resulting in a fuel tank explosion and consequent loss of the aeroplane.
To address this potential unsafe condition, Fokker Services developed a set of bonding modifications and anti-spray covers, [and] introduced with Service Bulletin (SB) SBF27-28-071 Revision 1 (R1), that require opening of the fuel tank access panels. More information on this subject can be found in Fokker Services All Operators Message AOF27.043#03.
For the reasons described above, this [EASA] AD requires installation of additional bonding provisions, and of anti-spray covers on the FSOV, that require opening of the fuel tank access panels.
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (80 FR 25247, May 4, 2015) or on the determination of the cost to the public.
We reviewed the available data and determined that air safety and the public interest require adopting this AD as proposed, except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (80 FR 25247, May 4, 2015) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 25247, May 4, 2015).
We estimate that this AD affects 15 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD becomes effective November 30, 2015.
None.
This AD applies to Fokker Services B.V. Model F.27 Mark 200, 300, 400, 500, 600, and 700 airplanes, certificated in any category, all serial numbers.
Air Transport Association (ATA) of America Code 28, Fuel.
This AD was prompted by a design review, which revealed that no controlled bonding provisions are present on a number of critical locations inside the fuel tank or connected to the fuel tank wall; and no anti-spray cover is installed on the fuel shut-off valve (FSOV) in both wings. We are issuing this AD to prevent an ignition source in the fuel tank vapor space, which could result in a fuel tank explosion and consequent loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
At the next scheduled opening of the fuel tanks after the effective date of this AD, but no later than 84 months after the effective date of this AD: Install additional bonding provisions at the applicable locations, and install an anti-spray cover on the FSOV in both wings, using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA.
Within 30 days after installing the bonding provisions and anti-spray cover specified in paragraph (g) of this AD: Revise the airplane maintenance or inspection program, as applicable, by incorporating fuel airworthiness limitation items and Critical Design Configuration Control Limitations (CDCCLs), using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA.
After accomplishing the revision required by paragraph (h) of this AD, no alternative actions (
The following provisions also apply to this AD:
(1)
(2)
Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-0099, dated April 30, 2014, for related information. This MCAI may be found in the AD docket on the Internet at
None.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
We are publishing a new airworthiness directive (AD) for Sikorsky Aircraft Corporation Model S-76A, S-76B, S-76C, and S-76D helicopters, which was sent previously to all known U.S. owners and operators of these helicopters. This AD requires inspecting the main rotor (M/R) and tail rotor (T/R) pushrod assemblies and the jamnuts, and applying slippage marks across the pushrod tubes and jamnuts. This AD is prompted by an accident of a Sikorsky Aircraft Corporation Model S-76C helicopter. During preliminary investigation, a failed pushrod assembly was identified. These actions are intended to prevent loss of M/R or T/R flight control and subsequent loss of control of the helicopter.
This AD becomes effective November 10, 2015 to all persons except those persons to whom it was made immediately effective by Emergency AD 2015-19-51, issued on September 14, 2015, which contains the requirements of this AD.
We must receive comments on this AD by December 28, 2015.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
For service information identified in this AD, contact Sikorsky Aircraft Corporation, Customer Service Engineering, 124 Quarry Road, Trumbull, CT 06611; telephone 1-800-Winged-S or 203-416-4299; email
Blaine Williams, Aerospace Engineer, Boston Aircraft Certification Office, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, Massachusetts 01803; telephone (781) 238-7161; email
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should
On September 14, 2015, we issued Emergency AD 2015-19-51 for Sikorsky Aircraft Corporation Model S-76A, S-76B, S-76C, and S-76D helicopters with M/R servo input control pushrod (pushrod) assembly part number (P/N) 76400-00034-059 or T/R pushrod assembly P/N 76400-00014-071 installed. Emergency AD 2015-19-51 requires inspecting the M/R forward, aft, and lateral pushrod assemblies, the T/R pushrod assembly, and the jamnuts, and applying slippage marks across the pushrod tubes and jamnuts. Emergency AD 2015-19-51 was sent previously to all known U.S. owners and operators of these helicopters and was prompted by an accident of a Sikorsky Aircraft Corporation Model S-76C helicopter in which a failed pushrod assembly was identified during preliminary investigation. Separation of the pushrod tube and the control rod end with bearing was found.
We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop on other helicopters of these same type designs.
Sikorsky issued Alert Service Bulletin No. 76-67-57, Basic Issue, dated September 10, 2015 (ASB), which specifies a one-time inspection of the M/R forward, aft, and lateral pushrod assemblies, the T/R pushrod assembly, and the jamnuts for proper installation, condition, and security. If a pushrod or jamnut does not meet criteria specified in the inspection, the ASB specifies replacing the assembly. The ASB also specifies applying two slippage marks across each M/R and T/R pushrod tube and jamnut. Further, the ASB references the applicable maintenance manual for a new recurring inspection of the slippage marks.
This AD requires, within five hours time-in-service (TIS), inspecting each M/R and T/R pushrod assembly by inspecting the position of the control rod end in the pushrod tube. If the lockwire passes through the inspection hole, this AD requires replacing the pushrod assembly. If the lockwire does not pass through the inspection hole, this AD requires inspecting the jamnut to determine seating position against the pushrod and whether the jamnut can be turned with finger pressure. If the jamnut is not seated against the pushrod or is loose, this AD requires replacing the pushrod assembly. This AD also requires, both for those pushrod assemblies that are replaced and for those that pass the inspections, applying two slippage marks across each M/R and T/R pushrod tube and jamnut.
We consider this AD to be an interim action as the accident investigation is ongoing. If additional action is later identified, we might consider further rulemaking.
We estimate that this AD affects 198 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD at an average labor rate of $85 per work-hour. It takes about 1 work-hour to inspect the pushrod assemblies and jamnut for a cost of $85 per helicopter and $16,830 for the U.S. fleet. It takes a minimal amount of time to apply the slippage marks for a negligible cost. Replacing a pushrod assembly takes about 1.5 work-hours for a labor cost of $128. Parts for an M/R pushrod assembly cost $2,411 for a total replacement cost of $2,539. Parts for a T/R pushrod assembly cost $1,905 for a total replacement cost of $2,033.
Providing an opportunity for public comments prior to adopting these AD requirements would delay implementing the safety actions needed to correct this known unsafe condition. Therefore, we found and continue to find that the risk to the flying public justifies waiving notice and comment prior to the adoption of this rule because the previously described unsafe condition can adversely affect the controllability of the helicopter and the initial required action must be accomplished within five hours TIS.
Since it was found that immediate corrective action was required, notice and opportunity for prior public comment before issuing this AD were impracticable and contrary to public interest and good cause existed to make the AD effective immediately by Emergency AD 2015-19-51, issued on September 14, 2015, to all known U.S. owners and operators of these helicopters. These conditions still exist and the AD is hereby published in the
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator,
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Model S-76A, S-76B, S-76C, and S-76D helicopters with main rotor (M/R) servo input control pushrod (pushrod) assembly part number (P/N) 76400-00034-059 or tail rotor (T/R) pushrod assembly P/N 76400-00014-071 installed, certificated in any category.
This AD defines the unsafe condition as a loose jamnut. This condition could result in failure of a pushrod assembly, loss of M/R or T/R flight control, and subsequent loss of control of the helicopter.
This AD becomes effective November 10, 2015 to all persons except those persons to whom it was made immediately effective by Emergency AD 2015-19-51, issued on September 14, 2015, which contains the requirements of this AD.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Within five hours time-in-service:
(1) Inspect each pushrod end to determine whether a 0.020 inch diameter lockwire can pass through the inspection hole.
(i) If the lockwire passes through the inspection hole, replace the pushrod assembly.
(ii) If the lockwire does not pass through the inspection hole, inspect the jamnut to determine whether it is seated against the pushrod and whether it can be turned with finger pressure. If the jamnut is not seated against the pushrod or can be turned with finger pressure, replace the pushrod assembly.
(2) Apply two slippage marks across each pushrod tube and jamnut as follows:
(i) Clean the area where a slippage mark is to be applied.
(ii) Apply two slippage marks across the pushrod tube and jamnut, parallel and on opposite sides of each other. Each slippage mark must extend at least 0.5 inch onto the pushrod tube and must not cover the inspection hole. Figures 2 and 4 of Sikorsky Alert Service Bulletin No. 76-67-57, Basic Issue, dated September 10, 2015, illustrate slippage marks across a pushrod tube and jamnut.
(1) The Manager, Boston Aircraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: Blaine Williams, Aerospace Engineer, Boston Aircraft Certification Office, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, Massachusetts 01803; telephone (781) 238-7161; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.
Sikorsky Alert Service Bulletin No. 76-67-57, Basic Issue, dated September 10, 2015, which is not incorporated by reference, contains additional information about the subject of this AD. For service information identified in this AD, contact Sikorsky Aircraft Corporation, Customer Service Engineering, 124 Quarry Road, Trumbull, CT 06611; telephone 1-800-Winged-S or 203-416-4299; email
Joint Aircraft Service Component (JASC) Code: 2700, Flight Control System.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are superseding Airworthiness Directive (AD) 2015-19-03 for all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. AD 2015-19-03 required revising the maintenance or inspection program to include new airworthiness limitations. This AD continues to require a maintenance or inspection program revision, but with revised language. This AD was prompted by a determination that certain language in the airworthiness limitation was not accurate in AD 2015-19-03. We are issuing this AD to detect and correct latent failures of the fuel shutoff valve to the engine, which could result in the inability to shut off fuel to the engine and, in case of certain engine fires, an uncontrollable fire that could lead to wing failure.
This AD is effective October 28, 2015.
We must receive any comments on this AD by December 10, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6509; fax:
On September 7, 2015, we issued AD 2015-19-03, Amendment 39-18266 (80 FR 55527, September 16, 2015), for all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. AD 2015-19-03 required revising the maintenance or inspection program to include new airworthiness limitations. AD 2015-19-03 resulted from reports of latently failed fuel shutoff valves discovered during fuel filter replacement. We issued AD 2015-19-03 to detect and correct latent failures of the fuel shutoff valve to the engine, which could result in the inability to shut off fuel to the engine and, in case of certain engine fires, an uncontrollable fire that could lead to wing failure.
Since we issued AD 2015-19-03, Amendment 39-18266 (80 FR 55527, September 16, 2015), we have determined that certain language in the airworthiness limitation was not accurate. In paragraph D. of the “Description” column of figure 1 to paragraph (g) of AD 2015-19-03, the “START LEVER” is identified as a “FUEL CONTROL switch” in four locations. In addition, in two locations in paragraph D. of the “Description” column of figure 1 to paragraph (g) of AD 2015-19-03, it specifies that fuel spar valve actuators are located in the “rear spar,” but the correct location is the “front spar.” Also, in two locations in paragraph D. of the “Description” column of figure 1 to paragraph (g) of AD 2015-19-03, the term “quadrant” is used to describe the control stand, but the correct terminology is “CONTROL STAND.” We have determined that the language must be corrected to avoid any confusion in the paragraphs of the airworthiness limitation. We are issuing this AD to detect and correct latent failures of the fuel shutoff valve to the engine, which could result in the inability to shut off fuel to the engine and, in case of certain engine fires, an uncontrollable fire that could lead to wing failure.
We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires revising the maintenance or inspection program to include new airworthiness limitations.
We consider this AD interim action. The manufacturer is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we might consider additional rulemaking.
We are superseding AD 2015-19-03, Amendment 39-18266 (80 FR 55527, September 16, 2015), to correct inaccurate terminology in paragraph D. of the “Description” column of figure 1 to paragraph (g) of AD 2015-19-03. We have made no other changes to the requirements published in AD 2015-19-03. We have determined that the changes impose no additional burden on any operator. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 1,244 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 28, 2015.
This AD replaces AD 2015-19-03, Amendment 39-18266 (80 FR 55527, September 16, 2015).
This AD applies to all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 2823, Fuel Selector/Shutoff Valve.
This AD was prompted by reports of latently failed fuel shutoff valves discovered during fuel filter replacement. We are issuing this AD to detect and correct latent failures of the fuel shutoff valve to the engine, which could result in the inability to shut off fuel to the engine and, in case of certain engine fires, an uncontrollable fire that could lead to wing failure.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to add airworthiness limitation number 28-AWL-MOV, “Engine Fuel Shutoff Valve (Fuel Spar Valve) Position Indication Operational Check,” by incorporating the information specified in figure 1 to paragraph (g) of this AD into the Airworthiness Limitations Section of the Instructions for Continued Airworthiness. The initial compliance time for accomplishing the actions specified in 28-AWL-MOV is within 10 days after accomplishing the maintenance or inspection program revision required by this paragraph.
After accomplishment of the maintenance or inspection program revision required by paragraph (g) of this AD, no alternative actions (
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6509; fax: 425-917-6590; email:
None.
U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury.
Interim final rule; correction.
U.S. Customs and Border Protection (CBP) published an Interim Final Rule (CBP Dec. 15-14) on October 13, 2015, in the
Effective November 1, 2015. The effective date for the interim final rule, published October 13, 2015 (80 FR 61278), remains November 1, 2015. Written comments must be submitted on or before November 12, 2015.
Robert Altneu, Chief, Trade and Commercial Regulations Branch, Regulations and Rulings, Office of International Trade, at
On October 13, 2015, U.S. Customs and Border Protection (CBP) published in the
On page 61289, in the second column, under “§ 141.57 [Amended]” revise Amendatory Instruction 38 to read as follows:
Employee Benefits Security Administration, Labor.
Interpretive bulletin.
This document sets forth supplemental views of the Department of Labor (Department) concerning the legal standard imposed by sections 403 and 404 of Part 4 of Title I of the Employee Retirement Income Security Act of 1974 (ERISA) with respect to a plan fiduciary's decision to invest plan assets in “economically targeted investments” (ETIs). ETIs are generally defined as investments that are selected for the economic benefits they create in addition to the investment return to the employee benefit plan investor. In this document, the Department withdraws Interpretive Bulletin 08-01 and replaces it with Interpretive Bulletin 2015-01 that reinstates the language of Interpretive Bulletin 94-01.
This interpretive bulletin is effective on October 26, 2015.
Office of Regulations and Interpretations, Employee Benefits Security Administration, (202) 693-8500. This is not a toll-free number.
The Department has been asked periodically over the last 30 years to consider the application of ERISA's fiduciary rules to pension plan investments selected because of the collateral economic or social benefits they may further in addition to their investment returns. Various terms have been used to describe this and related investment behaviors, such as socially responsible investing, sustainable and responsible investing, environmental, social and governance (ESG) investing, impact investing, and economically targeted investing (ETI). The terms do not have a uniform meaning and the terminology is evolving. As used in this interpretive bulletin, however, an economically targeted investment broadly refers to any investment that is selected, in part, for its collateral benefits, apart from the investment return to the employee benefit plan investor. The Labor Department previously addressed issues relating to ETIs in Interpretive Bulletin 94-1 (IB 94-1)
The Department has also consistently stated, including in Interpretative Bulletin 94-1, that the focus of plan fiduciaries on the plan's financial returns and risk to beneficiaries must be paramount. Under ERISA, the plan trustee or other investing fiduciary may not use plan assets to promote social, environmental, or other public policy causes at the expense of the financial interests of the plan's participants and beneficiaries. Fiduciaries may not accept lower expected returns or take on
Specifically, the Department stated in Interpretive Bulletin 94-1:
Sections 403 and 404 of the Employee Retirement Income Security Act of 1974 (ERISA), in part, require that a fiduciary of a plan act prudently, and to diversify plan investments so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so. In addition, these sections require that a fiduciary act solely in the interest of the plan's participants and beneficiaries and for the exclusive purpose of providing benefits to their participants and beneficiaries. The Department has construed the requirements that a fiduciary act solely in the interest of, and for the exclusive purpose of providing benefits to, participants and beneficiaries as prohibiting a fiduciary from subordinating the interests of participants and beneficiaries in their retirement income to unrelated objectives.
The Department continued in Interpretative Bulletin 2008-1:
ERISA's plain text thus establishes a clear rule that in the course of discharging their duties, fiduciaries may never subordinate the economic interests of the plan [participants and beneficiaries] to unrelated objectives [ ].
In the preamble to IB 94-1, the Department elaborated:
While the Department has stated that a plan fiduciary may consider collateral benefits in choosing between investments that have comparable risks and rates of return, it has consistently held that fiduciaries who are willing to accept expected reduced returns or greater risks to secure collateral benefits are in violation of ERISA. It follows that, because every investment necessarily causes a plan to forgo other investment opportunities, an investment will not be prudent if it would provide a plan with a lower expected rate of return than available alternative investments with commensurate degrees of risk or is riskier than alternative available investments with commensurate rates of return.
At the same time, however, the Department has consistently recognized that fiduciaries may consider such collateral goals as tie-breakers when choosing between investment alternatives that are otherwise equal with respect to return and risk over the appropriate time horizon. ERISA does not direct an investment choice in circumstances where investment alternatives are equivalent, and the economic interests of the plan's participants and beneficiaries are protected if the selected investment is in fact, economically equivalent to competing investments.
On October 17, 2008, the Department replaced Interpretive Bulletin 94-1, with Interpretive Bulletin 2008-01, codified at 29 CFR 2509.08-01. IB 2008-01 purported not to alter the basic legal principles set forth in IB 94-1. Its stated purpose was to clarify that fiduciary consideration of collateral, non-economic factors in selecting plan investments should be rare and, when considered, should be documented in a manner that demonstrates compliance with ERISA's rigorous fiduciary standards.
The Department believes that in the seven years since its publication, IB 2008-01 has unduly discouraged fiduciaries from considering ETIs and ESG factors. In particular, the Department is concerned that the 2008 guidance may be dissuading fiduciaries from (1) pursuing investment strategies that consider environmental, social, and governance factors, even where they are used solely to evaluate the economic benefits of investments and identify economically superior investments, and (2) investing in ETIs even where economically equivalent. Some fiduciaries believe the 2008 guidance sets a higher but unclear standard of compliance for fiduciaries when they are considering ESG factors or ETI investments.
An important purpose of this Interpretive Bulletin is to clarify that plan fiduciaries should appropriately consider factors that potentially influence risk and return. Environmental, social, and governance issues may have a direct relationship to the economic value of the plan's investment. In these instances, such issues are not merely collateral considerations or tie-breakers, but rather are proper components of the fiduciary's primary analysis of the economic merits of competing investment choices. Similarly, if a fiduciary prudently determines that an investment is appropriate based solely on economic considerations, including those that may derive from environmental, social and governance factors, the fiduciary may make the investment without regard to any collateral benefits the investment may also promote. Fiduciaries need not treat commercially reasonable investments as inherently suspect or in need of special scrutiny merely because they take into consideration environmental, social, or other such factors. When a fiduciary prudently concludes that such an investment is justified based solely on the economic merits of the investment, there is no need to evaluate collateral goals as tie-breakers.
In addition, this Interpretive Bulletin also clarifies that plan fiduciaries may invest in ETIs based, in part, on their collateral benefits so long as the investment is economically equivalent, with respect to return and risk to beneficiaries in the appropriate time horizon, to investments without such collateral benefits. In an effort to correct the misperceptions that have followed publication of IB 2008-01 the Department is withdrawing IB 2008-01, replacing it with this guidance that reinstates the language of IB 94-1.
Consistent with fiduciaries' obligations to choose economically superior investments, the Department does not believe ERISA prohibits a fiduciary from addressing ETIs or incorporating ESG factors in investment policy statements or integrating ESG-related tools, metrics and analyses to evaluate an investment's risk or return or choose among otherwise equivalent investments. Nor do sections 403 and 404 prevent fiduciaries from considering whether and how potential investment managers consider ETIs or use ESG criteria in their investment practices. As in selecting investments, in selecting investment managers, the plan fiduciaries must reasonably conclude that the investment manager's practices in selecting investments are consistent with the principles articulated in this guidance.
In addition, the Department does not construe consideration of ETIs or ESG criteria as presumptively requiring additional documentation or evaluation beyond that required by fiduciary standards applicable to plan investments generally. As a general matter, the Department believes that fiduciaries responsible for investing plan assets should maintain records sufficient to demonstrate compliance with ERISA's fiduciary provisions. As with any other investments, the appropriate level of documentation would depend on the facts and circumstances.
The Department also has concluded that the same standards set forth in sections 403 and 404 of ERISA governing a fiduciary's investment decisions, discussed above, apply to a fiduciary's selection of a “socially-responsible” mutual fund as a plan investment or, in the case of an ERISA section 404(c) plan or other individual account plan, a designated investment alternative under the plan. Specifically, in Advisory Opinion 98-04A, the
The following Interpretive Bulletin deals solely with the applicability of the prudence and exclusive purpose requirements of ERISA as applied to fiduciary decisions to invest plan assets in ETIs, and in particular the collateral benefits they may provide apart from a plan's performance and the interests of participants and beneficiaries in their retirement income. The bulletin does not supersede the regulatory standard contained at 29 CFR 2550.404a-1, nor does it address any issues which may arise in connection with the prohibited transaction provisions or the statutory exemptions from those provisions.
Employee benefit plans, Pensions.
For the reasons set forth in the preamble, the Department is amending subchapter A, part 2509 of title 29 of the Code of Federal Regulations as follows:
29 U.S.C. 1135. Secretary of Labor's Order 1-2003, 68 FR 5374 (Feb. 3, 2003). Sections 2509.75-10 and 2509.75-2 issued under 29 U.S.C. 1052, 1053, 1054. Sec. 2509.75-5 also issued under 29 U.S.C. 1002. Sec. 2509.95-1 also issued under sec. 625, Public Law 109-280, 120 Stat. 780.
This Interpretive Bulletin sets forth the Department of Labor's interpretation of sections 403 and 404 of the Employee Retirement Income Security Act of 1974 (ERISA), as applied to employee benefit plan investments in “economically targeted investments” (ETIs), that is, investments selected for the economic benefits they create apart from their investment return to the employee benefit plan. Sections 403 and 404, in part, require that a fiduciary of a plan act prudently, and to diversify plan investments so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so. In addition, these sections require that a fiduciary act solely in the interest of the plan's participants and beneficiaries and for the exclusive purpose of providing benefits to their participants and beneficiaries. The Department has construed the requirements that a fiduciary act solely in the interest of, and for the exclusive purpose of providing benefits to, participants and beneficiaries as prohibiting a fiduciary from subordinating the interests of participants and beneficiaries in their retirement income to unrelated objectives.
With regard to investing plan assets, the Department has issued a regulation, at 29 CFR 2550.404a-1, interpreting the prudence requirements of ERISA as they apply to the investment duties of fiduciaries of employee benefit plans. The regulation provides that the prudence requirements of section 404(a)(1)(B) are satisfied if (1) the fiduciary making an investment or engaging in an investment course of action has given appropriate consideration to those facts and circumstances that, given the scope of the fiduciary's investment duties, the fiduciary knows or should know are relevant, and (2) the fiduciary acts accordingly. This includes giving appropriate consideration to the role that the investment or investment course of action plays (in terms of such factors as diversification, liquidity, and risk/return characteristics) with respect to that portion of the plan's investment portfolio within the scope of the fiduciary's responsibility.
Other facts and circumstances relevant to an investment or investment course of action would, in the view of the Department, include consideration of the expected return on alternative investments with similar risks available to the plan. It follows that, because every investment necessarily causes a plan to forgo other investment opportunities, an investment will not be prudent if it would be expected to provide a plan with a lower rate of return than available alternative investments with commensurate degrees of risk or is riskier than alternative available investments with commensurate rates of return.
The fiduciary standards applicable to ETIs are no different than the standards applicable to plan investments generally. Therefore, if the above requirements are met, the selection of an ETI, or the engaging in an investment course of action intended to result in the selection of ETIs, will not violate section 404(a)(1)(A) and (B) and the exclusive purpose requirements of section 403.
Coast Guard, DHS.
Notice of deviation from regulations.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the SR 22 Bridge over the Tchefuncta River, mile 2.5, at Madisonville, St. Tammany Parish, Louisiana. This deviation is necessary to complete scheduled maintenance of the bridge. This deviation allows the bridge to remain closed to navigation for approximately six weeks while allowing for two scheduled openings on scheduled work days except for a five-day period and a 36-hour period, both in December, when there will be complete closures. The bridge will operate normally on non-scheduled work days and on weekends.
This deviation is effective from 7 a.m. on November 2, 2015 until 7 p.m. on December 15, 2015.
The docket for this deviation, [USCG-2015-0964] is available at
If you have questions on this temporary deviation, call or email Jim Wetherington, D8 Bridge Administration Branch, Coast Guard; telephone 504-671-2128, email
Coastal Bridge Company, LLC, on behalf of Louisiana Department of Transportation and Development (LDOTD), requested a deviation from the operating regulation for the SR 22 Bridge across the Tchefuncta River, mile 2.5, at Madisonville, St. Tammany Parish, Louisiana. The SR 22 Bridge is a swing bridge with a vertical clearance of 6.2 feet above Mean High Water (MHW) in the closed-to-navigation position and unlimited clearance in the open-to-navigation position. The operation of this bridge is currently governed by 33 CFR 117.500.
The closure is necessary for mechanical and electrical rehabilitation of the bridge. The deviation from the operating regulations will be in effect from Monday, November 2, 2015 until Tuesday, December 15, 2015, except for weekends. Within this time frame there will be multiple closure periods, deviating from the regular operating schedule, as follows:
(1) The first closure period will be from 7 a.m. on November 9th, until 7 p.m. on November 13th, 2015, except that the bridge will open at 9 a.m. and 7 p.m., daily, to pass all vessel traffic;
(2) The second closure period will be from 7 a.m. on November 16th until 9 p.m. on November 17th except that the bridge will open at 9 a.m. and 7 p.m., daily, to pass all vessel traffic;
(3) The third closure period will be from 7 a.m. on November 23rd until 9 p.m. on November 24th except that the bridge will open at 9 a.m. and 7 p.m., daily, to pass all vessel traffic;
(4) The fourth closure period will be a total closure from 7 a.m. on November 30th until 7 p.m. on December 4th; there will be no openings during this period;
(5) The fifth and final closure period will be a total closure from 9 a.m. on December 14th until 7 p.m. on December 15th; there will be no openings during this period. All work is expected to be completed by 7 p.m. on Tuesday, December 15, 2015.
Any changes to the scheduled closure times will be announced through the Local Notice to Mariners or through a broadcast. The traffic on the Tchefuncta River is primarily recreational with minimal commercial traffic. The contractor approached each marina and business that could possibly be impacted and forwarded them a copy of the work schedule. No negative comments were noted.
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 open for emergencies and there is no immediate alternate route for vessels to pass. 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 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 designated time periods. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the John F. Kennedy Space Center/NASA Parkway Bridge across the Atlantic Intracoastal Waterway, mile 885.0, Addison Point, FL. For the safety of the participants, this temporary operating schedule will allow the bridge to not open to navigation including tugs with tows, during the Rocketman Triathlon in November.
This deviation is effective from 7:30 a.m. on November 15, 2015 through 3 p.m. November 15, 2015.
The docket for this deviation, [USCG-2015-0904] is available at
If you have questions about this temporary deviation, call or email LT Storm, Coast Guard Sector Jacksonville, Chief, Prevention Office; telephone 904-564-7563, email
In order to accommodate the annual Triathlon, a temporary schedule deviation has been authorized for the John F. Kennedy Space Center (NASA) Parkway Bridge, across the Atlantic Intracoastal Waterway, mile 885.0 at Addison Point, FL. This deviation is in effect from 7:30 a.m. to 3 p.m. on November 15, 2015. During this time, the bridge shall remain closed to navigation, including tugs with tows. Currently, the bridge opens as required per 33 CFR 117.261(l). The regulation changes may have a minor impact on vessels transiting the Atlantic Intracoastal Waterway in the vicinity of Addison Point, FL, but will still meet the reasonable needs of navigation.
The John F. Kennedy Space Center (NASA) Parkway Bridge provides a vertical clearance of 27 feet at mean high water in the closed position and a horizontal clearance of 90 feet. Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies. The Coast Guard will inform users of the waterways through Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange 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 following the end of the effective period of this temporary deviation. This deviation from the normal operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of deviation from regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the SR 661 Swing Bridge across the Houma Navigation Canal, mile 36.0, in Houma, Terrebonne Parish, Louisiana. The deviation is necessary to conduct scheduled metal repairs and maintenance. This deviation allows the bridge to remain closed-to-
This deviation is effective from 6 a.m. on November 9, 2015, until 6 p.m. on November 20, 2015.
The docket for this deviation, [USCG-2015-0970] is available at
If you have questions on this temporary deviation, call or email Jim Wetherington, Bridge Administration Branch, Coast Guard, telephone (504)671-2128, email
C.E.C., Inc., for the Louisiana Department of Transportation and Development (LDOTD), requested a temporary deviation from the operating schedule of the SR 661 Swing Bridge across the Houma Navigation Canal, mile 36.0, in Houma, Terrebonne Parish, Louisiana. The vertical clearance of the swing bridge is one foot above mean high water in the closed-to-navigation position and unlimited in the open-to-navigation position. The bridge is governed by 33 CFR 117.455.
This deviation will be in effect from 6 a.m. through 6 p.m., daily, from November 9, 2015, until November 20, 2015 except weekends. This Deviation allows the bridge to remain closed-to-navigation for up to six hours, from 6 a.m. through 6 p.m. daily. During the evening and weekend time periods, the bridge will be left in the open-to-navigation position. During the closure periods, the contractor will make every effort to minimize the delays to mariners as well as maintain the bridge in the open-to-navigation position at all times when that repair work is not being conducted. Marine traffic, when allowed to pass, should pass at the slowest safe speed. The deviation was requested for the purpose of conducting necessary repairs and maintenance, including metal structure and rivet repair.
Navigation on the waterway consists primarily of commercial tugs and recreational craft. The contractor has informed the waterway users of the upcomming delays. This deviation is similar to previous work schedules and no issues were noted.
Vessels able to pass through the bridge in the closed-to-navigation position may do so at anytime. The bridge will be able to open for emergencies, and there is no immediate alternate route. 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 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.
Postal Service
Final rule.
The Postal Service is revising
Paula Rabkin at 202-268-2537.
New prices will be posted under Docket Number CP2016-9 on the Postal Regulatory Commission's Web site at
This final rule describes the international price and classification changes and the corresponding mailing standards changes for the following Competitive Services:
• Global Express Guaranteed® (GXG®).
• Priority Mail Express International
• Priority Mail International®.
• First-Class Package International Service
• International Priority Airmail® (IPA®).
• International Surface Air Lift® (ISAL®).
• Direct Sacks of Printed Matter to One Addressee (Airmail M-bags).
• International Extra Services:
• Insurance.
• International Postal Money Orders.
• International Money Order Inquiry Fee.
• International Money Transfer Service.
New prices will be located on the Postal Explorer® Web site at
Global Express Guaranteed (GXG) is the Postal Service's premier international expedited product provided through an alliance with FedEx Express®. The price increase for GXG service averages 7.1 percent.
The Postal Service provides Commercial Base pricing to online customers who prepare and pay for GXG shipments via USPS-approved payment methods (with the exception of Click-N-Ship® service), with a 5 percent discount off the published retail prices for GXG. Customers who prepare GXG shipments via Click-N-Ship service will now pay retail prices.
The Postal Service continues to offer Commercial Plus pricing for large volume customers who commit to tendering $100,000 in annual postal revenue from GXG, Priority Mail Express International, Priority Mail International, and First-Class Package International Service via USPS-approved payment methods. The Postal Service will also continue to include GXG in customized Global Expedited Package Services (GEPS) contracts offered to customers who meet certain revenue thresholds and are willing to commit a larger amount of revenue in international postage.
Priority Mail Express International (PMEI) service provides fast service to approximately 180 countries. Priority Mail Express International with Money-Back Guarantee service is available for certain destinations. The price increase for Priority Mail Express International service averages 11.6 percent. The Commercial Base price for customers that prepare and pay for Priority Mail Express International shipments via permit imprint, online at USPS.com®, or as registered end-users using an authorized PC Postage vendor (with the exception of Click-N-Ship service) will be 5 percent below the retail price. Customers who prepare Priority Mail Express International shipments via Click-N-Ship service will now pay retail prices. The Postal Service continues to offer Priority Mail Express International Commercial Plus pricing to large volume customers who commit to tendering $100,000 in annual postal revenues from GXG, Priority Mail Express International, Priority Mail International, and First-Class Package International Service. The Postal Service will also continue to include Priority Mail Express International in
We are discontinuing the Priority Mail Express International Flat Rate Box. Customers who present items at retail to be mailed in a Priority Mail Express International Flat Rate Box will pay the retail price based on the item's weight and price group.
Priority Mail Express International flat rate pricing continues to be available for Flat Rate Envelopes. New this year, the prices for what was formerly the “all other countries” rate group are being replaced with flat rate prices in seven rate groups, based on geographical regions.
Priority Mail International (PMI) is an economical way to send merchandise and documents to about 180 countries. The price increase for Priority Mail International service averages 10.2 percent. The Commercial Base price for customers that prepare and pay for PMI items via permit imprint, online at USPS.com, or as registered end-users using an authorized PC Postage vendor (with the exception of Click-N-Ship service) will be 5 percent below the retail price. Customers who prepare Priority Mail International shipments via Click-N-Ship service will now pay retail prices. The Postal Service continues to offer Priority Mail International Commercial Plus pricing to large volume customers who commit to tendering $100,000 in annual postal revenues from GXG, Priority Mail Express International, Priority Mail International, and First-Class Package International Service. The Postal Service will continue to include Priority Mail International in customized Global Expedited Package Services (GEPS) contracts offered to customers who meet certain revenue thresholds and are willing to commit to a larger amount of revenue to the USPS® for Priority Mail Express International and Priority Mail International.
Priority Mail International flat rate pricing continues to be available for Flat Rate Envelopes, Small Flat Rate Priced Boxes, and Medium and Large Flat Rate Boxes. New this year, the prices for what was formerly the “all other countries” rate group are being replaced with flat rate prices in seven rate groups, based on geographical regions.
In this filing, we are proposing a structural change in the way insurance is provided and reimbursed for Priority Mail International. Priority Mail International shipments containing merchandise (other than in Priority Mail International Small Flat Rate Priced Boxes and Flat Rate Envelopes) will now be insured against loss, damage, or missing contents up to $200 at no additional charge. Additional insurance coverage up to a maximum of $5,000 (depending on individual country insurance limits) may be purchased at the sender's option. Priority Mail International shipments containing nonnegotiable documents (other than in Priority Mail International Flat Rate Envelopes and Small Flat Rate Priced Boxes) will now be insured against loss, damage, or missing contents up to $100 for document reconstruction at no additional charge. The insurance coverage will be provided on all outbound Priority Mail International shipments accepted at retail or paid for by using postage validation imprinter (PVI) labels, postage meter imprints, USPS-approved PC Postage, Click-N-Ship service postage, or permit imprint.
Electronic USPS Delivery Confirmation International service — abbreviated E-USPS DELCON INTL—is an optional service available for Priority Mail International Flat Rate Envelopes (except for the Gift Card Flat Rate Envelope) and all Small Flat Rate Priced Boxes to select destination countries, for customers using select software or online tools, at no charge. We are adding E-USPS DELCON INTL service to four countries with this price change: Lebanon, Norway, Slovak Republic, and Turkey.
In the May 2015 price change, we created new price zones for Priority Mail International to Canada, based on the distance of the origin ZIP Code to the serving International Service Center (ISC). An ISC Zone Chart is now available for a subscription fee from the National Customer Support Center in Memphis, Tennessee, to support zone-based pricing for Priority Mail International to Canada. The chart will enable mailers to determine the applicable zone, based on the origin ZIP Code. Once the zone and weight of the item are known, the mailer will be able to determine the applicable postage price.
First-Class Package International Service (FCPIS) is an economical international service for small packages weighing less than 4 pounds and not exceeding $400 in value. The pricing structure for FCPIS will continue to be simpler than for some other international products, with identical prices for 0 to 8 ounces within each country price group, and identical prices for 9 to 32 ounces within each country price group. The price increase for FCPIS averages 21.6 percent. The Commercial Base price for customers that prepare and pay for FCPIS items via permit imprint or by USPS-approved online payment methods will be 5 percent below the retail price. Customers who prepare First-Class Package International Service shipments via Click-N-Ship service will now pay retail prices. Commercial Plus pricing will be available to large volume customers who commit to tendering $100,000 in annual postal revenue for GXG, Priority Mail Express International, Priority Mail International, and First-Class Package International Service.
Electronic USPS Delivery Confirmation International service—abbreviated E-USPS DELCON INTL—is an optional service available for First-Class Package International Service items to select destination countries, for customers using select software or online tools, at no charge. We are adding E-USPS DELCON INTL service to four countries with this price change: Lebanon, Norway, Slovak Republic, and Turkey.
Published prices for International Priority Airmail (IPA) and International Surface Air Lift (ISAL) will increase by 4.2 percent for IPA and 3.5 percent for IPA M-bags, as well as 6.3 percent for ISAL and 5.3 percent for ISAL M-bags. The structure of IPA and ISAL price categories will continue to be priced by the worldwide and 19 country price groups and applicable mail shapes (letters and postcards, large envelopes [flats], and packages [small packets and rolls]). These categories correspond to the Universal Postal Convention requirements to use shape-based pricing. For IPA and ISAL, the Postal Service offers incentive pricing through International Negotiated Service Agreements (NSAs).
International Priority Airmail (IPA) service, including IPA M-bags, is a bulk commercial service that provides business mailers with rapid and economical worldwide delivery for volume mailings of First-Class Mail International postcards, letters, large envelopes (flats), and FCPIS packages (small packets) weighing up to a maximum 4.4 pounds. IPA is dispatched to the destination country where it is entered into the postal administration's air or surface priority mail system for delivery. The overall
International Surface Air Lift (ISAL) service, including ISAL M-bags, is a bulk commercial service that provides economical worldwide delivery to business mailers of volume mailings of all First-Class Mail International postcards, letters, large envelopes (flats), and FCPIS packages (small packets) weighing up to 4.4 pounds. ISAL is dispatched to the destination country where it is then entered into the postal administration's surface nonpriority network for delivery. The overall price increase for ISAL service averages 6 percent.
Airmail M-bags are direct sacks of printed matter sent to a single foreign addressee at a single address. Prices are based on the weight of the sack. The price increase for Airmail M-bags averages 9.2 percent.
Depending on country destination and mail type, customers may add a variety of extra services to their outbound shipments. Prices for some of these extra services are increasing:
Foreign relations, International postal services.
The Postal Service hereby adopts the following changes to
Accordingly, 39 CFR part 20 is amended as follows:
5 U.S.C. 552(a); 13 U.S.C. 301-307; 18 U.S.C. 1692-1737; 39 U.S.C. 101, 401, 403, 404, 407, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3622, 3626, 3632, 3633, and 5001.
[
d. Priority Mail International service (except for Priority Mail International Small Flat Rate Priced Boxes and Flat Rate Envelopes).
Priority Mail Express International service cannot be used to send the articles noted in 134.2.
An approved mailer who pays postage with a permit imprint under 213.8, or through a registered end-user of a USPS-approved PC Postage product (except for Click-N-Ship service), qualifies for the Global Express Guaranteed Commercial Plus prices. * * *
For selected destination countries, Global Express Guaranteed items qualify for discounted prices (equal to the Commercial Base price or Commercial Plus price) when mailers use one of the following online shipping methods:
a. Commercial Base Price: Registered end-users of USPS-approved PC Postage products using online postage (with the exception of Click-N-Ship service); or a USPS meter label solution using metered postage.
b. Commercial Plus Price: Registered end-users of USPS-approved PC Postage products (with the exception of Click-N-Ship service).
Commercial Base and Commercial Plus prices are not available through Click-N-Ship service. The Commercial Base or Commercial Plus price is automatically applied to each shipment when using one of the postage payment methods above. The discount applies only to the postage portion of the Global Express Guaranteed price. It does not apply to any other charges or fees, such as fees for Pickup on Demand service, insurance, or shipments made under a customized agreement.
Only USPS-produced Priority Mail Express International Flat Rate Envelopes are eligible for the Flat Rate price and are charged a flat rate price depending on the rate group of the destination. * * *
Except under 223.14, Priority Mail Express International shipments are
An approved mailer who pays postage with a permit imprint under 223.222, or as a registered end-user of a USPS-approved PC Postage product (except for Click-N-Ship service), qualifies for the Priority Mail Express International Commercial Plus prices, which are the same as Priority Mail Express International Commercial Base prices. Customers who prepare Priority Mail Express International shipments via Click-N-Ship service pay retail prices. See Notice 123,
For selected destination countries, Priority Mail Express International items qualify for discounted prices (equal to the Commercial Base price or Commercial Plus price) when mailers use one of the following online shipping methods:
a. Commercial Base Price: Registered end-users of USPS-approved PC Postage products using online postage (with the exception of Click-N-Ship service) or a USPS meter label solution using metered postage.
b. Commercial Plus Price: Registered end-users of USPS-approved PC Postage products (with the exception of Click-N-Ship service).
An asterisk indicates that service was temporarily suspended on June 12, 2014.
Only items paid with USPS-approved PC Postage (with the exception of Click-N-Ship service), permit imprint, or a USPS meter label solution are eligible for the applicable Commercial Base or Commercial Plus price for the postage portion of the mailpiece. Customers using a USPS meter label solution to print shipping labels must apply postage from a meter to be eligible for Commercial Base or Commercial Plus prices. Items with electronically generated customs forms that are not generated with PC Postage, a permit imprint, or a USPS meter label solution (for example, forms electronically generated by Webtools or Click-N-Ship service) are charged the retail price.
* * * Priority Mail International parcels containing merchandise are insured against loss, damage, or missing contents up to $200 at no additional charge. Additional insurance may be available, depending on country and value—see Exhibit 322.2 and the Individual Country Listings for insurance availability, limitations, and coverage. * * *
Each Priority Mail International parcel must bear a properly completed PS Form 2976-A.
Except for Small Flat Rate Priced Boxes, Priority Mail International parcels containing merchandise are insured against loss, damage, or missing contents up to $200 at no additional charge. Indemnity is limited to the lesser of the actual value of the contents or $200. * * *
Merchandise insurance that provides coverage greater than the included $200 merchandise insurance may be available, depending on country, content, and value—see Exhibit 322.2 and the Individual Country Listings for insurance availability, limitations, and coverage. When merchandise insurance is purchased, it replaces the included $200 merchandise insurance.
Insurance coverage is not provided for consequential losses, delay, concealed damage, spoilage of perishable items, articles improperly packaged, articles too fragile to withstand normal handling in the mail, or prohibited articles.
Certificate of mailing service is available for purchase only for Priority Mail International Flat Rate Envelopes and Small Flat Rate Priced Boxes.
Merchandise insurance that provides coverage greater than the included $200 merchandise insurance is available for Priority Mail International parcels, except Small Flat Rate Priced Boxes, to many countries. When merchandise insurance is purchased, it replaces the included $200 merchandise insurance. See Exhibit 322.2 and the Individual Country Listings for insurance availability, limitations, and coverage. See Notice 123,
* * * Price zones for Priority Mail International to Canada are based on the distance of the origin ZIP Code to the serving International Service Center (ISC). An ISC Zone Chart is available by subscription from the National Customer Support Center in Memphis. To purchase copies of the Zone Chart, call the Zone Chart program administrator at 800-238-3150 or write to the following address: NATIONAL CUSTOMER SUPPORT CENTER, UNITED STATES POSTAL SERVICE, 225 N HUMPHREYS BLVD STE 501, MEMPHIS TN 38188-1001.
An approved mailer who pays postage with a permit imprint under 233.222, or through a registered end-user of a USPS-approved PC Postage product (with the exception of Click-N-Ship service), qualifies for the Priority Mail International Commercial Plus prices.
Priority Mail International Flat Rate Envelopes and Small Flat Rate Priced Boxes are charged a flat rate price depending on the rate group of the destination. * * *
The Priority Mail International Medium and Large Flat Rate Boxes are charged a flat rate price depending on the rate group of the destination. * * *
A mailer who pays postage with a permit imprint qualifies for the Priority Mail International Commercial Base or Commercial Plus prices.
For selected destination countries, Priority Mail International items qualify for discounted prices (equal to the Commercial Base price or Commercial Plus price) when mailers use one of the following online shipping methods:
a. Commercial Base Price: Registered end-users of USPS-approved PC Postage products using online postage (with the exception of Click-N-Ship service); or a USPS meter label solution using metered postage.
b. Commercial Plus Price: Registered end-users of an authorized PC Postage vendor (with the exception of Click-N-Ship service).
An asterisk indicates that service was temporarily suspended on June 12, 2014.
Only items paid with USPS-approved PC Postage (with the exception of Click-N-Ship service), permit imprint, or a USPS meter label solution are eligible for the applicable Commercial Base or Commercial Plus price for the postage
An approved mailer who pays postage with a permit imprint under 253.222, or through a registered end-user of a USPS-approved PC Postage product (with the exception of Click-N-Ship service), qualifies for the First-Class Package International Service Commercial Plus prices. * * *
For selected destination countries, First-Class Package International Service items qualify for discounted prices (equal to the Commercial Base price or Commercial Plus price) when mailers use one of the following online shipping methods:
a. Commercial Base Price: Registered end-users of USPS-approved PC Postage products (with the exception of Click-N-Ship service) using online postage; or a USPS meter label solution using metered postage.
b. Commercial Plus Price: Registered end-users of an authorized PC Postage vendor (with the exception of Click-N-Ship service).
A customer may purchase a certificate of mailing (individual pieces) when sending the following:
Insurance is not available for Priority Mail International Flat Rate Envelopes or Small Flat Rate Priced Boxes. Priority Mail International shipments containing merchandise are insured against loss, damage, or missing contents up to $200 at no additional charge. Priority Mail International shipments containing only nonnegotiable documents are insured against loss, damage, or missing contents up to $100 for document reconstruction at no additional charge. Indemnity is paid by the U.S. Postal Service as provided in 933. For a fee, the sender may purchase additional insurance to protect against loss, damage, or missing contents for Priority Mail International parcels containing merchandise. Additional document reconstruction insurance may not be purchased. If the parcel has been lost, or if it has been delivered to the addressee in damaged condition or with missing contents, payment is made to the sender unless the sender waives the right to payment, in writing, in favor of the addressee.
Merchandise insurance above the included $200 amount is available only for Priority Mail International parcels (including Medium and Large Flat Rate Boxes) and only to certain countries. * * *
Additional merchandise insurance coverage above the included $200—up to the maximum amount allowed by the country (see Exhibit 322.2) but never to exceed $5,000—may be purchased at the sender's option. The insurance fee is in addition to postage and other applicable fees and is based on the insured value. See Notice 123,
The accepting clerk must do the following:
a. When additional insurance has been purchased, indicate on PS Form 2976-A the amount for which the parcel is insured. Write the amount in U.S. dollars in ink in the “Insured Amount (U.S. $)” block.
b. When additional insurance has been purchased, as an indicator write a bold capital “V” in the space provided adjacent to the boxes for Insured Amount and Insurance Fees.
c. Round stamp PS Form 2976-A in the appropriate place on each copy.
Priority Mail International shipments are covered by document reconstruction and merchandise insurance in case of loss, damage, or missing contents. Indemnity will be paid by the Postal
When additional merchandise insurance has not been purchased, coverage is limited to the actual value of the contents or $200, whichever is less. Document reconstruction insurance is limited to the actual cost of document reconstruction or $100, whichever is less.
Listed below are the countries and their price groups and weight limits for the five principal categories of international mail. Complete tables of prices are available in
n/a = Service is not available.
Flat Rate Envelopes: The maximum weight is 4 pounds. Refer to Notice 123,
We will publish an appropriate amendment to 39 CFR part 20 to reflect these changes.
Postal Service
Final rule.
The Postal Service is amending
Karen Key at (202) 268-7492 or Garry Rodriguez at (202) 268-7281.
This final rule describes new prices and product features for competitive products, by class of mail, established by the Governors of the United States Postal Service. New prices are available under Docket Number CP2016-9 on the Postal Regulatory Commission's (PRC) Web site at
The Postal Service will revise the
• Priority Mail Express ®.
• Priority Mail ®.
• First-Class Package Service ®.
• Parcel Select ®.
• Standard Post
• Extra Services.
• Return Services.
• Mailer Services.
• Recipient Services.
Competitive product prices and changes are identified by product as follows:
Overall, Priority Mail Express prices will increase 15.6 percent. Priority Mail Express will continue to offer zoned Retail, Commercial Base
Retail prices will increase an average of 14.4 percent. The price for the Retail Flat Rate Envelope, Legal Flat Rate Envelope, and Padded Flat Rate Envelope will increase to $22.95.
Commercial Base prices offer lower prices to customers who use authorized postage payment methods. Commercial Base prices will increase an average of 17.7 percent. Commercial Base pricing offers an average 10.0 percent discount off retail prices.
The Commercial Plus price category offers price incentives to large volume customers. Commercial Plus prices will increase an average of 48.2 percent. The Postal Service is proposing this increase to match Commercial Plus prices with Commercial Base prices as part of a pricing strategy with the long-term goal of eliminating the Commercial Plus price category to reflect the industry standard of publishing only one set of commercial price tables. Commercial Plus customers may be transitioned to Negotiated Service Agreements (NSAs) for additional discounts.
The Postal Service will discontinue the use of Priority Mail Express Flat Rate Boxes as a product offering. As of January 17, 2016, Priority Mail Express Flat Boxes will be charged the applicable Priority Mail Express price based on weight and zone.
Overall, Priority Mail prices will increase 9.8 percent. Priority Mail will continue to offer zoned Retail, Commercial Base, and Commercial Plus pricing tiers.
Retail prices will increase an average of 8.6 percent. The Flat Rate Envelope price will increase to $6.45, the Legal Flat Rate Envelope will also increase to $6.45, and the Padded Flat Rate Envelope will increase to $6.80. The Small Flat Rate Box price will increase to $6.80 and the Medium Flat Rate Boxes will increase to $13.45. The Large Flat Rate Box will increase to $18.75 and the Large APO/FPO/DPO Flat Rate Box will increase to $16.75.
Commercial Base prices offer lower prices to customers who use authorized postage payment methods. Commercial Base prices will increase an average of 9.4 percent. Commercial Base pricing offers an average 13.9 percent discount off retail prices.
The Commercial Plus price category offers price incentives to large volume customers. Commercial Plus prices will increase an average of 13.3 percent. The Postal Service is proposing this increase to bring Commercial Plus prices within three percent of Commercial Base prices as part of a pricing strategy with the long-term goal of eliminating the Commercial Plus price category to reflect the industry standard of publishing only one set of commercial price tables. Commercial Plus customers may be transitioned to Negotiated Service Agreements (NSAs) for additional discounts.
The Postal Service will discontinue the Critical Mail (Critical Mail and Critical Mail with Signature) product offering. As of January 17, 2016, Critical Mail letters and flats will be charged the Commercial Plus Flat Rate Envelope price. Critical Mail with signature letters and flats will be charged the Commercial Plus Flat Rate Envelope price and Signature Confirmation
The Postal Service will implement a two-tier zone surcharge for Regional Rate Boxes A and B paid at retail. Zones 1-4 will have a $2.25 surcharge and Zones 5-9 will have a $1.00 surcharge.
Additionally, the Postal Service will discontinue the Priority Mail Regional Rate Box ® C to simplify this product offering. As of January 17, 2016, a Regional Rate Box C will be charged the applicable Priority Mail price based on weight and zone.
Overall, First-Class Package Service prices will increase 12.8 percent. The Intelligent Mail ® package barcode (IMpb) will continue to provide free USPS tracking and confirmation of delivery with these parcels.
The Postal Service will discontinue First-Class Package Service Commercial Plus pricing and restructure First-Class Package Service commercial parcel prices to simplify this product offering.
Parcel Select Destination Entry prices will increase an average of 4.9 percent and Parcel Select Ground (formerly Parcel Select Nonpresort) prices will increase an average of 1.9 percent. The prices for Parcel Select Lightweight® (PSLW) will increase an average of 23.5 percent.
The IMpb will continue to provide free USPS tracking and confirmation of delivery with all Parcel Select parcels.
The Postal Service will rename Parcel Select Nonpresort as Parcel Select Ground. No changes to the product features or mailing standards are being made as a result of this change.
The Postal Service will discontinue the Parcel Select ONDC and NDC price categories to simplify product offerings. As of January 17, 2016, parcels entered at Parcel Select ONDC and NDC prices will be charged the applicable Parcel Select Ground prices.
The Postal Service will consolidate the Parcel Select Lightweight Machinable and Irregular price tables to simplify this product offering. The new price table, similar to the existing Irregular price table, will be titled “Parcel Select Lightweight-Commercial Parcels” and will have 5-Digit, SCF, NDC, and Mixed NDC/Single Piece price levels. The weight increments will start at 1 ounce and include pieces up to less than 16 ounces. Mail preparation will remain the same for machinable and irregular presorted parcels, and will be subject to the applicable price levels based on sortation.
Overall, Standard Post prices will increase an average of 10.0 percent.
The Postal Service will rename Standard Post as Retail Ground. No changes to the product features or mailing standards are being made as a result of this change.
Adult Signature Required and Adult Signature Restricted Delivery service prices are increasing 3.6 and 3.5 percent respectively. The price for Adult Signature Required will increase to $5.70 and Adult Signature Restricted Delivery will increase to $5.95.
Overall, Parcel Return Service (PRS) prices will increase an average of 5.0 percent.
Return Sectional Center Facility (RSCF) prices will increase an average of 5.0 percent and Return Delivery Unit (RDU) prices will increase an average of 5.0 percent.
The Parcel Return Service annual permit fee and annual account maintenance fee will not change at this time.
The Postal Service will discontinue the RNDC price option to simplify this product offering. As of January 17, 2016, parcels entered at RNDC prices will be charged the applicable Parcel Select Ground price.
The Postal Service is introducing a reduced Additional Service Fee for Parcel Select shippers who use IMpb
Premium Forwarding Service® (PFS®) prices will increase an average of 3.6 percent. The enrollment fee paid at the retail counter will increase to $18.65 and the residential and commercial enrollment fee paid online will increase to $17.10 per application. The price of the weekly reshipment charge will increase to $18.65.
The USPS Package Intercept
The Pickup on Demand® service daily fee will remain at $20.00 for January 17, 2016.
The competitive Post Office Box
The Postal Service is restructuring Click-N-Ship® to offer only retail prices. Click-N-Ship will no longer be an authorized payment method for Priority Mail Express and Priority Mail Commercial Base pricing.
The Postal Service provides additional resources to assist customers with this price change for competitive products. These tools include price lists, downloadable price files, and
Administrative practice and procedure, Postal Service.
The Postal Service adopts the following changes to
Accordingly, 39 CFR part 111 is amended as follows:
5 U.S.C. 552(a); 13 U.S.C. 301-307; 18 U.S.C. 1692-1737; 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3622, 3626, 3632, 3633, and 5001.
Only USPS-produced or approved Flat Rate Envelopes are eligible for the Flat Rate price and are charged a flat rate, regardless of the actual weight (up to 70 pounds) of the mailpiece or domestic destination. * * *
Retail Priority Mail Express postage may be paid with adhesive stamps (see 604.1.0), with meter stamps (see 604.4.0) affixed to each piece, or with Click-N-Ship. * * *
When sealing a Flat Rate Envelope, the container flap must be able to close within the normal fold. Tape may be applied to the flap and seams to reinforce the container provided the design of the container is not enlarged by opening the sides, and the container is not reconstructed in any way.
Regional Rate Box prices are available to Priority Mail Commercial Base or Commercial Plus customers who use USPS-produced Priority Mail Regional Rate Boxes under 223.1.8. Regional Rate Boxes paid at retail are charged a fee based on zone (1-4 or 5-9), in addition to the applicable Commercial Base or Commercial Plus postage. Regional Rate Boxes that exceed the maximum weight as specified in 223.1.8 or have container flaps that do not close within the normal folds are not eligible for Regional Rate Box prices and are assessed the applicable single-piece Priority Mail price.
Priority Mail postage may be paid with postage stamps (see 604.1.0), with meter stamps (see 604.4.0) affixed to each piece, or with Click-N-Ship.
The following maximum weight limits apply:
Maximum weight limits are as follows:
First-Class Package Service parcels must weigh less than 16 ounces.
The basic required marking “First-Class Package” or “First-Class PKG” must be printed as part of, directly below, or to the left of the postage on all parcels.
* * * Optionally, the basic required marking may be printed on the shipping address label as service indicators composed of a service icon and service banner (see Exhibit 3.7.1):
b. * * * The appropriate marking (
* * * The following product markings are required:
b. Ground—“Parcel Select Ground” or “Parcel Select GND”.
Priority Mail Express Commercial Base prices are less than Priority Mail Express retail prices (see Notice 123—Price List). These prices are available to:
Only USPS-produced or approved Flat Rate Envelopes are eligible for the Flat Rate price and are charged a flat rate, regardless of the actual weight (up to 70 pounds) of the mailpiece or domestic destination. * * *
Commercial Base Priority Mail Express postage may be paid with:
When sealing a Flat Rate Envelope, the container flap must be able to close within the normal fold. Tape may be applied to the flap and seams to reinforce the container provided the design of the container is not enlarged by opening the sides and the container is not reconstructed in any way.
For each Priority Mail Express item, the mailer must complete Label 11-B or Label 11-F, Label 11-HFPU for Hold For Pickup service, or a single-ply Priority Mail Express label generated through a USPS-approved method. * * *
For prices, see Notice 123—Price List. The Commercial Base prices are available for:
* * * Regional Rate Box options are:
Priority Mail is eligible for Hold For Pickup service under 508.7.0.
To determine single-piece weight in any mailing of nonidentical-weight pieces, weigh each piece individually. To determine single-piece weight in a mailing of identical-weight pieces, weigh a sample group of at least 10 randomly selected pieces and divide the total sample weight by the number of pieces in the sample. Except for mailers using eVS, express all single-piece weights in decimal pounds rounded off to two decimal places. Mailers using eVS may round off to four decimals, and eVS will automatically round to the appropriate decimal place. If a customer is using a manifest mailing system, the manifest weight field must be properly completed by adhering to the rules relative to the specific manifest.
* * * Lower weight limits apply to Commercial Plus cubic (see 1.5); Regional Rate Boxes (see 1.9); APO/FPO mail subject to 703.2.0 and 703.4.0 and Department of State mail subject to 703.3.0.
Unless authorized to use a unique IMb on Priority Mail letters and flats prepared in high-speed environments, all Priority Mail pieces must bear an Intelligent Mail package barcode prepared under 708.5.0. * * *
Priority Mail matter is closed against postal inspection.
Priority Mail Commercial Base and Regional Rate Box postage may be paid with:
Mailpieces bearing postage evidencing indicia must be deposited in a collection box or at a postal facility within the ZIP Code shown in the indicia, except as permitted under 2.0 or 604.4.6.3. * * *
* * * The price categories for Parcel Select are as follows:
b. Ground
Pricing is available for Parcel Select at the Destination Entry and Parcel Select Ground levels. * * *
* * * When postage is paid using USPS-approved PC Postage in conjunction with barcoded Parcel Select Ground mailings, there is no minimum volume.
Prices for Parcel Select Lightweight apply to parcels that meet the eligibility standards in 2.0 and 4.4 and the preparation standards in 255.7.0, 705.6.0, or 705.8.0. * * *
Mailing fees must be paid for the current 12-month period at the Postal Service facility where postage is paid for the mailing.
a. Permit imprint may be used for identical-weight pieces provided the mail can be separated at acceptance into groups that each contain pieces subject to the same combination of prices.
When presented for acceptance, documentation of postage by entry office and presort level (
Each piece in a Parcel Select mailing must bear a price marking under 202.3.7.2. Markings must appear in either the postage area described in 202.3.7, or in the address area on the line directly above or two lines above the address if the marking appears alone (when no other information appears on that line). The “Retail Ground” marking is not allowed on any Parcel Select mailpiece.
All mailings and all pieces in each mailing at Parcel Select Lightweight prices are subject to the specific preparation standards in 7.2 and 7.3, and to these general standards:
* * * Mailers presenting destination entry mailings to the Postal Service must meet the following requirements:
a. Mark each DNDC, DSCF, or DDU Parcel Select piece as “Parcel Select,” according to 202.3.7.2. * * *
First-Class Package Service prices start at 1 ounce and must weigh less than 16 ounces. Any fraction of an ounce is considered a whole ounce.
Commercial prices are available when paid by one of the following methods:
A surcharge applies for parcels that are irregularly shaped, such as rolls, tubes, and triangles.
In addition to restricted material described in 601.8.0, parcels mailed at First-Class Package Service prices may not contain documents or personal correspondence, except that such parcels may contain invoices, receipts, incidental advertising, and other documents that relate in all substantial respects to merchandise contained in the parcels.
See 233.2.0 for a detailed description of matter required to be mailed as First-Class Mail or Priority Mail. The following types of contents must be mailed as First-Class Mail or -Priority Mail:
Articles mailed at First-Class Package Service prices are not sealed against postal inspection. Regardless of physical closure, the mailing of articles at First-Class Package Service prices constitutes consent by the mailer to postal inspection of the contents.
All First-Class Package Service parcels must:
b. Bear a delivery address that includes the correct ZIP Code or ZIP+4.
Single-piece prices apply to nonpresorted parcels mailed under 285.1.0.
* * * All mail manifested using the Electronic Verification System (eVS) under 705.2.9 must be paid using a permit imprint. * * *
Each First-Class Package Service parcel bearing postage evidencing system indicia (IBI Meter or PC Postage) must bear the full numerical value of postage at the First-Class Package Service price for which it qualifies.
The following standards apply to single-piece First-Class Package Service:
a. Each piece is required to bear the markings under 202.3.6.
b. There are no sorting requirements for single-piece First-Class Package Service parcels.
The USPS may collect First-Class Package Service parcels at a mailer's facility if part of an approved collection service for other classes of mail; space is available on the transportation; and:
c. Postage is paid with postage evidencing system postage.
Mailings are subject to USPS procedures to verify correct postage payment. The return of mailings to the mailer's facility for reworking is the mailer's responsibility.
Insured mail is subject to the basic standards in 1.0; see 1.4 for eligible matter. The following additional standards apply to insured mail:
e. First-Class Mail, First-Class Package Service, and Priority Mail may be insured, if it contains matter that is eligible to be mailed at Standard Mail, Retail Ground, or Package Services prices.
Postage is calculated based on the weight of the parcel and zone, except for First-Class Package Return Service, for which postage is based on the weight of the parcel. * * *
Priority Mail Return Service, First-Class Package Return Service, and Ground Return Service provide return service options to customers who meet the applicable standards in 3.0. Except for restricted material described in Publication 52, any mailable matter may be mailed using any of the USPS Return Service options. Any content that constitutes First-Class Mail matter may only be mailed using Priority Mail Return Service.
Parcel Return Service prices are based on the price that applies to the weight increment of each addressed piece, and on the designated return facility, RDU or RSCF. * * *
b. Balloon and Oversized Prices: RSCF parcels that weigh less than 20 pounds but measure more than 84 inches in combined length and girth are charged the applicable price for a 20-pound parcel (balloon price). * * *
There are two PRS price categories:
Parcel Return Service (PRS) applies to parcels that are picked up in bulk by authorized permit holders or their agents. Permit holders guarantee payment of postage for all parcels mailed with a PRS label. By providing an approved PRS label to its customers, the merchant or other party designates the permit holder identified on the label as their agent for receipt of mail bearing that label, and authorizes the USPS to provide that mail to the permit holder or its designee. PRS permit holders also may retrieve parcels at one or more designated return sectional center facilities (RSCFs) or designated return delivery units (RDUs). Payment for parcels returned under PRS is deducted from a separate advance deposit (postage-due) account funded through the Centralized Account Processing System (CAPS). The permit holder must be authorized to use eVS (see 705.2.9).
* * * If the permit holder (or agent) has existing appointments to deliver Parcel Select parcels to destination facilities and those facilities are one of the designated RSCFs or designated RDUs, those appointments can be used for retrieving PRS parcels at the same time. * * *
The following are PRS label format examples.
Undeliverable-as-addressed (UAA) Retail Ground, Package Services, and Parcel Select (see 1.5.3 for Parcel Select Lightweight) mailpieces are treated as described in Exhibit 1.5.4, with these additional conditions:
If change-of-address order on file:
• Months 1 through 12: Parcel forwarded. Forwarding postage is
If change-of-address order on file:
• Months 1 through 12: Parcel forwarded. Forwarding postage is charged to the mailer as follows; at the applicable Retail Ground or Package Services single-piece price or the Parcel Select Ground price plus the ACS & Shipper Paid Forward/Return additional service fee. Separate notice of new address provided (electronic ACS fee charged).
If no change-of-address order on file:
Piece returned with reason for nondelivery attached; Return postage is charged to the mailer as follows: at the Retail Ground or Package Services single-piece price, or the Parcel Select Ground price plus the ACS & Shipper Paid Forward/Return additional service fee. Separate notice provided (electronic ACS fee is charged).
If change-of-address order on file:
• Months 1 through 12: Parcel forwarded. Forwarding postage is charged to the mailer as follows: at the Retail Ground or Package Services single-piece price or the Parcel Select Ground price plus the ACS & Shipper Paid Forward/Return additional service fee. Separate notice of new address provided (electronic ACS fee is charged).
If change-of-address order on file:
•
Undeliverable, unendorsed mailpieces with a First-Class Mail attachment or enclosure are forwarded or returned as follows:
a. Parcel Select at the Parcel Select Ground price plus the additional service fee.
Hold For Pickup service is available for the mail classes listed under 7.2.2, when postage is paid by:
Hold For Pickup service is available at retail Post Office locations for Priority Mail Express presented under 113.4.2 or 113.4.3, and for Priority Mail using Click-N-Ship. It is also available with commercial mailings of Priority Mail Express presented under 213.4.2. or 213.4.3, Priority Mail, First-Class Package Service, Parcel Select Ground, Parcel Select Lightweight, and Bound Printed Matter parcels, when:
b. For electronic option, mailers establish an electronic link with USPS to exchange acceptance and delivery data. * * *
The sender's domestic return address must appear legibly on:
e. Priority Mail.
* * * Each address, except for mail bearing an alternative address format (under 3.0), in a mailing at commercial First-Class Mail presorted or automation prices, Standard Mail, or Parcel Select Lightweight prices is subject to the Move Update standard and must meet these requirements:
b. The Move Update standard is met when an address used on a mailpiece in a mailing at any class of mail is updated under 5.2, and the same address is used in a First-Class Mail, Standard Mail, or Parcel Select Lightweight mailing within 95 days after the address has been updated.
The following methods are authorized for meeting the Move Update standard:
d. For First-Class Mail only: Mailer Move Update Process Certification and USPS-approved alternative methods for mailers with legitimate restrictions on incorporating USPS-supplied change-of-
Except for mail bearing a simplified address, addresses used on pieces in a mailing at all commercial First-Class Mail, nonbarcoded presorted Periodicals, Standard Mail, Parcel Select Lightweight, and Bound Printed Matter presorted and carrier route prices are subject to the ZIP Code accuracy standard and must meet these requirements:
Mailers may use postage evidencing systems to affix or apply indicia on any class of mail except Periodicals and Bound Printed Matter. PC Postage products may be used for Retail Ground only by USPS-Approved Shippers.
A permit imprint indicia on Priority Mail Express, Priority Mail, First-Class Mail, or First-Class Package Service mailpieces must show “Priority Mail Express,” “Priority Mail” (or “Priority”), “First-Class Mail,” or “First-Class Package” (or “First-Class Pkg”) as applicable; “U.S. Postage Paid”; city and state; and permit number. If the Electronic Verification System (eVS) is used under 705.2.9, the marking “eVS” (or the alternative “e-VS” or “E-VS”) must appear directly below the permit number. The “Priority Mail Express,” or “Priority Mail” (or “Priority”), marking may be omitted when using USPS-provided Priority Mail Express or Priority Mail containers. The indicia may show the mailing date, amount of postage paid, or the number of ounces for which postage is paid. The ZIP Code of the permit holder may be shown directly after the state name or in a separate inscription reading “ZIP Code 00000,” when that ZIP Code does not create uncertainty about the permit holder's correct address or permit number. Instead of printing the city and state of mailing in the indicia, the mailer may print “Mailed From ZIP Code,” followed by the 5-digit ZIP Code assigned to the postmaster of the mailing office. The indicia may also include required price markings.
* * * Express all single-piece weights in decimal pounds rounded off to two decimal places for the following mailpieces: Priority Mail Express, Priority Mail, Parcel Select, Bound Printed Matter, Media Mail, and Library Mail prices. * * *
* * * Returns include Ground Return Service, First-Class Package Return Service, Priority Mail Return Service, and Parcel Return Service shipments. * * *
Combination requirements for specific discounts and prices are as follows:
Combined parcels must be prepared as follows:
A mailer may use pallet boxes constructed of single-, double-, or triple-wall corrugated fiberboard placed on pallets to hold sacks or parcels. Pallet boxes must protect the mail and maintain the integrity of the pallet loads throughout transportation, handling, and processing. Single-wall corrugated fiberboard may be used only for light loads (such as lightweight parcels) that do not require transportation by the USPS beyond the entry office, or for Parcel Select DSCF and DDU price mail. Mailers must supply their own pallet boxes. The base of the boxes must measure approximately 40 by 48 inches.
The following standards apply to Periodicals, Standard Mail, Parcel Select, and Package Services, except Parcel Select mailed at DSCF and DDU prices:
The following minimum load standards apply to mail prepared on pallets:
a. For Periodicals, Standard Mail, Parcel Select, and Package Services
b. Parcel Select mailed at DSCF and DDU prices. A minimum load for the price claimed may be stated in terms of weight, combined piece minimum and weight, or minimum height. Mail entered at the Parcel Select DSCF prices and prepared directly on pallets or in pallet boxes on pallets must be prepared under either a minimum height requirement or under one of two options requiring a minimum number of pieces and pounds per pallet. There is no minimum weight requirement for an SCF pallet containing 5-digit scheme and 5-digit sacks prepared for the DSCF price. There are no minimums for the Parcel Select DDU price.
The definitions of the minimum height of mail used to qualify for DSCF Parcel Select prices are as follows:
Postage payment methods are as follows:
b. Priority Mail Express postage may be paid under any of the options listed in 214.1.1. * * *
c. Priority Mail postage may be paid under any of the options listed in 224.1.1.1. * * *
Acceptable containers for expedited transport are as follows:
c. A Priority Mail Express or Priority Mail Open and Distribute shipment destined to a DDU may be contained in USPS-provided Priority Mail Express Flat Rate envelopes using the applicable label in 18.5.3a, or Priority Mail Flat Rate Envelopes and boxes using the applicable label in 18.5.3b.
Apply prices based on the criteria in 200 and the following standards:
e. Parcel Select prices are based on the destination entry for pieces in 5-digit, 3-digit, ADC, or NDC containers.
The actual name of the price level (or abbreviation) is used for column headings required by 1.2 and shown below:
b. Presorted First-Class Mail, barcoded and nonbarcoded Periodicals flats, nonbarcoded Periodicals letters, and machinable and nonmachinable Standard Mail:
We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency is approving a request from the State of New York that EPA withdraw its approval of a provision of the New York State plan that implements and enforces the Emission Guidelines for existing sewage sludge incineration units. This action withdraws the EPA's approval of a provision of the State sewage sludge incineration plan allowing for affirmative defenses of Clean Air Act violations in the case of malfunctions. No other provision in the State plan is affected by this action.
This rule is effective on November 25, 2015.
EPA has established a docket for this action under Docket ID No. EPA-R02-OAR-2015-0509. All documents in the docket are listed on the
Anthony (Ted) Gardella (
The EPA is approving a request from the State of New York that EPA
New York State requested that the EPA withdraw its approval of a provision in the State SSI plan that allows for an affirmative defense by an owner/operator of an affected SSI unit for violations of air emissions or other requirements of the State's plan in the event of malfunction(s) of the SSI unit. The EPA's withdrawal of its prior approval, once finalized and effective, results in the removal of the affirmative defense provision from the federally-enforceable State SSI plan while maintaining the federal enforceability of the remainder of the State SSI plan for covered SSI units located in New York State.
New York's State SSI plan adopted by reference all the applicable requirements of the EPA's SSI EG, including the affirmative defense provisions at § 60.5181, into its State plan at Part 200 of Title 6 of the New York Code of Rules and Regulations (6NYCRR) of the State of New York, entitled “General Provisions.”
For further details concerning today's action, the reader is referred to the EPA's proposed rule published in the
There were no comments received on EPA's proposed rulemaking (80 FR 51170, August 24, 2015) regarding the EPA's withdrawal of its prior approval of the affirmative defense provision in New York State's SSI plan. The 30-day public comment period on EPA's proposed approval ended on September 23, 2015.
The EPA has evaluated New York's January 27, 2015 request for consistency with the CAA, as well as the EPA's regulations and policy. Therefore, the EPA is approving to withdraw its approval of the affirmative defense provision of New York's State SSI plan, which the EPA approved on June 11, 2014 (79 FR 33456) as part of New York's sections 111(d) and 129 State SSI plan for existing sewage sludge incineration units. No other provisions in the New York State SSI plan is affected by this approval.
The EPA has determined that New York State's SSI plan will continue to meet all the applicable approval criteria if EPA withdraws its approval of the affirmative defense provision. First, the removal of the affirmative defense provision is consistent with the DC Circuit's decision in
Under the CAA, the Administrator is required to approve a 111(d)/129 plan submission that complies with the provisions of the Act and applicable Federal regulations. 40 CFR 62.04. Thus, in reviewing 111(d)/129 plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The 111(d)/129 plan is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian Nation Land, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65FR67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 28, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time
Environmental protection, Administrative practice and procedure, Air pollution control, Aluminum, Fertilizers, Fluoride, Intergovernmental relations, Paper and paper products industry, Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, Sulfur acid plants, Waste treatment and disposal.
40 CFR part 62 is amended as follows:
42 U.S.C. 7401
(d) On January 27, 2015, the New York State Department of Environmental Conservation (NYSDEC) submitted to the Environmental Protection Agency (EPA) a request to revise its section 111(d)/129 plan for implementation and enforcement of 40 CFR part 60, subpart MMMM—Emission Guidelines and Compliance Times for Existing Sewage Sludge Incineration (SSI) Units submitted on July 1, 2013 and approved by the EPA on June 11, 2014 (79 FR 33456). NYSDEC's January 27, 2015 revision consisted of a request that EPA withdraw its June 11, 2013 approval of the affirmative defense provision as part of its State SSI plan, submitted to EPA for approval on July 1, 2013.
(e) The effective date of EPA's approval of NYSDEC's revised plan for existing sewage sludge incineration units is November 25, 2015.
Federal Emergency Management Agency, DHS.
Final rule.
Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated in the table below.
The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is amended as follows:
42 U.S.C. 4001
Coast Guard, DHS.
Direct final rule.
This direct final rule amends the Coast Guard's merchant mariner manning regulations to align them with statutory changes made by the Howard Coble Coast Guard and Maritime Transportation Act of 2014. The Act allows oilers serving on certain offshore support vessels, towing vessels, and barges to be divided into at least two watches. This change increases the sea service credit affected mariners are permitted to earn for each 12-hour period of work from one day to one and a half days.
This direct final rule will be effective January 25, 2016 unless the Coast Guard receives adverse comment by December 28, 2015. If an adverse comment is received, the Coast Guard will publish a timely withdrawal of the direct final rule in the
You may submit comments identified by docket number USCG-2015-0758 using the Federal eRulemaking Portal at
If you have questions on this rule, email or call Mr. Davis Breyer, Marine Personnel Qualifications Division (CG-OES-1), Coast Guard; email
If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. If your material cannot be submitted using
The changes to 46 CFR 15.705 made by this rule are required by 46 U.S.C. 8104 as amended by Sec. 316 of the Howard Coble Coast Guard and Maritime Transportation Act of 2014 (Pub. L. 113-281, December 18, 2014). Under Title 46 of the United States Code, Sec. 2103, the Secretary of Homeland Security (the Secretary) has general authority over the merchant marine of the United States and merchant marine personnel. The Secretary delegated the authority for determining minimum manning standards to the Commandant of the Coast Guard in Department of Homeland Security Delegation No. 0170.1, paragraph 92.
The purpose of this rule is to conform regulations to the amended statute and clarify that oilers on covered vessels are entitled to receive an equitable amount of sea service credit.
The Howard Coble Coast Guard and Maritime Transportation Act of 2014, sec. 316, amended 46 U.S.C. 8104(g)(1) by allowing coal passers, firemen, oilers, and water tenders serving on offshore supply vessels, towing vessels, and barges engaged in seagoing voyages of less than 600 miles to be divided into at least two watches. Previously, only officers and other deck crew members on those vessels were divided into two watches.
46 CFR 10.107 and 10.232(h)(2) provide in the definition of “Day” that “[o]n vessels authorized by 46 U.S.C. 8104 and 46 CFR 15.705 to operate a two-watch system, a 12-hour working day may be creditable as 1
Similarly, sec. 316 also updated 46 U.S.C. 8104(d) by deleting the words “coal passers, firemen, . . . and watertenders.” The changes related to those terms simplify the statute. To update the corresponding regulations and align them with the revised statute, this rule also makes similar changes to 46 CFR 15.705(b).
This rule makes existing regulations consistent with the statute and clarifies the sea service credit of maritime personnel on affected vessels, which have for many years operated on a two-watch system, both on deck and in the engine room. Specifically, the revised regulations make clear that typical sea service credit for upgrades toward engineering licenses for oilers is 1
Revision of our regulations without delay is necessary because misalignment between the amended statute and the corresponding regulations causes confusion, and delay could have a negative impact on the sea service credit and career advancement of oilers on affected vessels. Additionally, the Coast Guard must conform its regulations to the revised statute, and is exercising no discretion in doing so because this rule will only mirror amended statutory language. For these reasons, the rule is expected to be uncontroversial, and adverse comment is unlikely.
A direct final rule is appropriate when a rule is noncontroversial and
The Coast Guard developed this direct final rule after considering numerous statutes and executive orders related to this rulemaking. Below, the Coast Guard summarizes its analyses based on these statutes or executive orders.
Executive Orders 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 direct final rule has not been designated a “significant regulatory action”, under section 3(f) of Executive Order 12866. Accordingly, the direct final rule has not been reviewed by the Office of Management and Budget (OMB). A regulatory assessment of the direct final rule follows.
This direct final rule conforms Coast Guard regulations to sec. 316, which eliminated the exception of engine ratings originally found within 46 U.S.C. 8104(g)(1). Sec. 316 amended 46 U.S.C. 8104(g)(1) to allow coal passers, firemen, oilers, and water tenders serving on certain offshore support vessels, towing vessels, and barges to be divided into at least two watches. In order to align the regulations with the amended statute, this rule will revise 46 CFR 15.705(b) by deleting the words “coal passers, firemen, . . . and water tenders,” and 46 CFR 15.705(c)(1) by deleting the words “except the coal passers, firemen, oilers, and water tenders.”
The changes in 46 CFR 15.705(c)(1) clarify that the sea service credit afforded to all qualified members of the engine department, on certain offshore support vessels, towing vessels and barges is consistent with revised 46 U.S.C. 8104(g)(1). The National Maritime Center of the Coast Guard identified approximately 18,721 such mariners holding valid licenses as of the end of 2014. This figure constitutes the total number of mariners that this rule could affect and includes valid licenses for Unlicensed Engine Ratings and QMED with a variety of job descriptions. Before the statute was amended, these unlicensed mariners could not be divided into two watches to work 12-hour shifts and, therefore, could not receive 1
This direct final rule will result in no adverse impacts or costs to the industry and affected mariners. On the contrary, the industry is urging speedy revision of our regulations because delaying this rule would have a negative impact on the sea service credit and career advancement of affected mariners due to confusion caused by conflicting statutory and regulatory provisions. This rule will not result in a change to the Coast Guard's budget and it will not increase federal spending.
The direct final rule aligns Coast Guard regulations with the amended statute and clarifies that affected mariners are entitled to benefits allowed by 46 CFR 10.107 and 10.232(h)(2). The primary benefit of this rule is to reduce confusion and clarify that affected mariners are allowed to receive 1
The Coast Guard considered four alternatives for this direct final rule:
The no-action alternative (Alternative 1) would cause confusion because it would leave regulations in place that contradict the new statute. Therefore, the Coast Guard rejected this alternative.
The Coast Guard rejected the delayed-action alternative (Alternative 2) for the same reason. The misalignment between 46 U.S.C. 8104 and the corresponding regulations is causing confusion among mariners, and there is no discernible advantage in delay.
The develop policy alternative (Alternative 3) could grant the affected engine ratings the same sea service credit as the officers and deck ratings aboard the affected vessels. The Coast Guard rejected this alternative, however, because policy properly provides either: guidance about accepted methods for meeting regulations; or short term solutions, within the limits of existing regulations, to provide relief until amended regulations can be promulgated.
In this case, the time and effort required by the Coast Guard to develop and publish relevant policy would equal or exceed that expected to amend the regulation with a direct final rule. In addition, after publishing the policy, the regulation would still require amendment to be consistent with the statute. Therefore, the Coast Guard rejected this alternative.
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Coast Guard prepared this Regulatory Flexibility Analysis (RFA) that examines the impacts of this direct final rule on small entities (5 U.S.C. 601
The direct final rule will regulate mariners who are individually responsible for obtaining their appropriate sea service credit for career advancement. In addition, current and future mariners will not incur any costs to comply with this rule. Finally, individuals, such as the mariners regulated by this rule, are not small entities under the definition of a small entity in the RFA. Therefore, we certify that this direct final rule will not have a significant economic impact on a substantial number of small entities under section 605(b) of the Regulatory Flexibility Act.
The Coast Guard is interested in the potential impacts from this direct final rule on small businesses and we request public comment on these potential impacts. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rulemaking would have a significant economic impact on it, please submit a comment to the address under
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Mr. Davis Breyer, Maritime Personnel Qualifications Division (CG-OES-1), Coast Guard; email
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).
This rule calls for no 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. The Coast Guard has analyzed this rule under that Order and has determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132. It is well settled that States may not regulate in categories reserved for regulation by the Coast Guard. 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 covered 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 the field foreclosed from regulation by the States. (See the decision of the Supreme Court in the consolidated cases of
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, the Coast Guard does 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.
The Coast Guard has 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.
The Coast Guard has analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Coast Guard has determined that it is not a “significant energy action” under that order 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
The National Technology Transfer and Advancement Act (NTTAA) (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 (
This rule does not use technical standards. Therefore, the Coast Guard did not consider the use of voluntary consensus standards.
The Coast Guard has analyzed this rule under DHS 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 has concluded 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 under section 2.B.2, figure 2-1, paragraph (34) (a) and (c) of the Instruction. This rule involves procedural changes and the licensing of mariners under sec. 316. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Reporting and recordkeeping requirements, Seamen, Vessels.
For the reasons discussed in the preamble, the Coast Guard amends 46 CFR part 15 as follows:
46 U.S.C. 2101, 2103, 3306, 3703, 8101, 8102, 8104, 8105, 8301, 8304, 8502, 8503, 8701, 8702, 8901, 8902, 8903, 8904, 8905(b), 8906, 9102, and 8103; sec. 617, Pub. L. 111-281, 124 Stat. 2905; and Department of Homeland Security Delegation No. 0170.1.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of data availability (NODA).
The U.S. Department of Energy (DOE) has completed a preliminary analysis for purposes of considering energy conservation standards for electric pool heaters. At this time, DOE is not proposing energy conservation standards for electric pool heaters. However, it is publishing this analysis so stakeholders can review the analysis's output and the underlining assumptions and calculations that might ultimately support a proposed standard. DOE encourages stakeholders to provide any additional data or information that may improve the analysis. The analysis is now publicly available at on the DOE Web site.
DOE will accept comments, data, and other information regarding this rulemaking no later than December 10, 2015. See section IV, “Public Participation,” of this document for details.
The direct heating equipment and pool heater docket (EERE-2015-BT-STD-0003) is available for review at
Also, the DOE Web page for pool heaters (which includes additional information about existing standards and test procedures, and the history and impacts of previous DOE regulatory actions for these products) may be viewed at
For detailed instructions on submitting comments and additional information on the rulemaking process, see section IV, “Public Participation,” of this document. For further information on how to submit a comment or to review other public comments and the docket contact Ms. Brenda Edwards at (202) 586-2945 or by email:
For information on how to submit or review public comments, contact Ms. Brenda Edwards, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-2945. Email:
Title III, Part B
EPCA prescribes specific energy conservation standards for pool heaters and direct heating equipment. (42 U.S.C. 6295(e)(2), (3)) EPCA directed DOE to conduct two cycles of rulemakings to determine whether to amend its standards for direct heating equipment and pool heaters. (42 U.S.C. 6295(e)(4)) The statute further requires DOE to publish a notice of proposed rulemaking including new proposed standards or a notice of determination that the standards for a product need not be amended no later than 6 years after issuance of any final rule establishing or amending standards for that product. (42 U.S.C. 6295(m)(1)) DOE last promulgated a final rule on April 16, 2010, amending its energy conservation standards for direct heating equipment and pool heaters,
EPCA also provides criteria for prescribing amended standards for covered products generally, including direct heating equipment and pool heaters. As indicated above, any such amended standard must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Additionally, EPCA provides specific prohibitions on prescribing such standards. DOE may not prescribe an amended standard for any of its covered products for which it has not established a test procedure. (42 U.S.C. 6295(o)(3)(A)) Further, DOE may not prescribe a standard if DOE determines by rule that such standard would not result in “significant conservation of energy,” or “is not technologically feasible or economically justified.” (42 U.S.C. 6295(o)(3)(B)) EPCA also provides that in deciding whether a standard is economically justified for covered products, DOE must, after receiving comments on the proposed standard, determine whether the benefits of the standard exceed its burdens by considering, to the greatest extent practicable, the following seven factors:
1. The economic impact of the standard on manufacturers and consumers of the products subject to the standard;
2. The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the imposition of the standard;
3. The total projected amount of energy (or, as applicable, water) savings likely to result directly from the imposition of the standard;
4. Any lessening of the utility or the performance of the covered products likely to result from the imposition of the standard;
5. The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the imposition of the standard;
6. The need for national energy and water conservation; and
7. Other factors the Secretary of Energy (Secretary) considers relevant. (42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII))
In addition, EPCA, as amended, establishes a rebuttable presumption that any standard for covered products is economically justified if the Secretary finds that “the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy (and as applicable, water) savings during the first year that the consumer will receive as a result of the standard,” as calculated under the test procedure in place for that standard. (42 U.S.C. 6295(o)(2)(B)(iii))
EPCA also contains what is commonly known as an “anti-backsliding” provision. (42 U.S.C. 6295(o)(1)) This provision mandates that the Secretary not prescribe any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. EPCA further provides that the Secretary may not prescribe an amended standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States of any product type (or class) with performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States at the time of the Secretary's finding. (42 U.S.C. 6295(o)(4)) Under 42 U.S.C. 6295(q)(1), EPCA specifies requirements applicable to promulgating standards for any type or class of covered product that has two or more subcategories. Under this provision, DOE must specify a different standard level than that which applies generally to such type or class of product that has the same function or intended use, if DOE determines that the products within such group: (A) Consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard than applies or will apply to the other products. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies such a different standard for a group of products, DOE must consider “such factors as the utility to the consumer of such a feature” and other factors the Secretary deems appropriate.
Section 310(3) of the Energy Independence and Security Act of 2007 (EISA 2007; Public Law 110-140) amended EPCA to prospectively require that energy conservation standards address standby mode and off mode energy use. Specifically, when DOE adopts new or amended standards for a covered product after July 1, 2010, the final rule must, if justified by the criteria for adoption of standards in section 325(o) of EPCA, incorporate standby mode and off mode energy use into a single standard if feasible, or otherwise adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)) On December 17, 2012 DOE promulgated a final rule amending its test procedures for vented direct heating equipment and pool heaters to incorporate standby and off-mode energy consumption. 77 FR 74559. The amendments related to standby and off-mode energy consumption were not required for purposes of compliance until the compliance date of the next standards final rule for those products.
Finally, Federal energy conservation requirements for covered products generally supersede State laws or regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE can, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions of section 327(d) of the Act. (42 U.S.C.6297(d))
Before proposing a standard, DOE typically seeks public input about the analytical framework, models, and tools that it will use to evaluate standards for the product or equipment at issue and the results of preliminary analyses DOE
Currently, energy conservation standards are established for vented home heating equipment (a form of direct heating equipment) and gas-fired pool heaters. (10 CFR 430.32(i) and (k)) DOE last amended its energy conservation standards for pool heaters and direct heating equipment through a final rule published in the
In addition to determining whether energy conservation standards for vented home heating equipment and gas-fired pool heaters should be amended, DOE is considering during this rulemaking whether it is appropriate to establish energy conservation standards for electric pool heaters, including both electric resistance pool and spa heaters as well as electric heat pump pool heaters. As described in section I, although energy conservation standards for electric pool heaters have not previously been set, the definition of coverage for pool heaters found at 42 U.S.C. 6291(25) does not specify a fuel type, and therefore all pool heaters (including electric) are considered covered products under EPCA. Among other topics, the March 2015 RFI sought data and information pertaining specifically to electric pool heaters, including electric resistance pool and spa heaters as well as electric heat pump pool heaters. Since energy conservation standards have not previously been established for electric pool heaters, DOE is publishing this preliminary analysis for electric pool heaters in order to solicit feedback regarding the methodologies used and results obtained based on information collected during the March 2015 RFI public comment period and preliminary confidential manufacturer interviews, among other sources. DOE does not plan to publish a similar preliminary analysis for vented home heating equipment and gas-fired pool heaters. DHE product offerings have not markedly changed since the final rule analysis in 2010 (with the exception of condensing technology for fan-type wall furnaces). Additionally, DOE has performed testing on vented home heating equipment (a subset of DHE) and through this process has built sufficient knowledge, in combination with the previous rulemaking analyses and the March 2015 RFI, to forgo a preliminary analysis for these products. DOE requests comment on its determination to forgo a preliminary analysis for these products and notes that interested parties will have the opportunity to comment on DOE's analyses for vented home heating equipment and gas-fired pool heaters during the Notice of Proposed Rulemaking (NOPR) phase of the rulemaking process.
DOE completed a separate test procedure rulemaking for direct heating equipment and pool heaters by publishing in the
As indicated above, in initiating this rulemaking DOE published a Request for Information on March 26, 2015. Among other topics, DOE solicited data and information pertaining to electric resistance and electric heat pump pool and spa heaters. Comments received since publication of the March 2015 RFI have helped DOE identify issues and collect data related to the preliminary analyses for electric pool heaters. Chapter 2 of the preliminary TSD summarizes and addresses the comments received in response to the March 2015 RFI.
For the electric pool heaters covered in this rulemaking, DOE conducted in-depth technical analyses in the following areas: (1) Engineering; (2) markups to determine product price; (3) energy use; (4) life-cycle cost and payback period; and (5) national impacts. The preliminary TSD that presents the methodology and results of each of these analyses is available at
DOE also conducted, and has included in the preliminary TSD, several other analyses that support the major analyses or are preliminary analyses that will be expanded upon for a NOPR if DOE determines that amended energy conservation standards are technologically feasible, economically justified, and would save a significant amount of energy, based on the information available to DOE. These analyses include: (1) The market and technology assessment; (2) the screening analysis, which contributes to the engineering analysis; and (3) the shipments analysis, which contributes to the life-cycle cost (LCC) and payback period (PBP) analysis and national impact analysis (NIA). In addition to these analyses, DOE has begun preliminary work on the manufacturer impact analysis and has identified the methods to be used for the LCC consumer subgroup analysis, the emissions analysis, the employment impact analysis, the regulatory impact analysis, and the utility impact analysis. DOE will expand on these analyses in the NOPR.
When initiating an analysis of potential energy efficiency standards for a residential product, DOE develops information for the products and characterizes the market and industry structure, evaluating both current and historical information. This activity is primarily based on a review of publicly-available information.
When evaluating and establishing energy conservation standards, DOE generally divides covered products into product classes by the type of energy used or by capacity or other performance-related features that affect efficiency. DOE has tentatively decided to differentiate between electric pool heaters and electric spa heaters on the basis that each of these two products have different characteristics which have the potential of affecting efficiency. Specifically, electric spa heaters often have space constraints which would impede the use of higher efficiency technologies. DOE therefore considered two product classes—electric pool heaters and electric spa
Energy conservation standards may be proposed later in the rulemaking for either, both, or neither of these potential product classes in addition to gas-fired pool heaters. (42 U.S.C. 6295(q)) Alternatively, DOE could propose different product classes than those analyzed in its preliminary analysis if comments, information, or additional analysis be provided that suggest doing so would be more appropriate for the pool and spa heater market. Chapter 3 of the preliminary TSD addresses the market and technology assessment.
The engineering analysis establishes the relationship between the manufacturer selling price and efficiency levels of the products that DOE is evaluating as potential energy conservation standards. This relationship serves as the basis for cost-benefit calculations for individual consumers, manufacturers, and the Nation. The engineering analysis identifies representative baseline products, which is the starting point for analyzing technologies that provide energy efficiency improvements. “Baseline” refers to a model or models having features and technologies typically found in minimally-efficient products currently available on the market and, for products already subject to energy conservation standards, a model that just meets the current standard. After identifying the baseline models, DOE estimated manufacturer selling prices by using a consistent methodology and pricing scheme that includes material costs and manufacturer markups. DOE used these inputs to develop manufacturer selling prices for the baseline and more-efficient designs. Later, in the markups analysis to determine the installed price, DOE converts these manufacturer selling prices into installed prices. Chapter 5 of the preliminary TSD discusses the engineering analysis.
DOE derives consumer installed prices based on manufacturer markups, retailer markups, distributor markups, contractor markups (where appropriate), and sales taxes. In deriving these markups, DOE determines the major distribution channels for product sales, the markup associated with each party in each distribution channel, and the existence and magnitude of differences between markups for baseline products (baseline markups) and higher-efficiency products (incremental markups). DOE calculates both overall baseline and overall incremental markups based on the product markups at each step in each distribution channel. Chapter 6 of the preliminary TSD addresses the markups analysis.
The energy use analysis provides estimates of the annual energy consumption of electric pool heaters. The energy use analysis seeks to estimate the range of energy consumption of products that meet each of the efficiency levels considered in a given rulemaking as they are used in the field. DOE uses these values in the LCC and PBP analyses and in the NIA. Chapter 7 of the preliminary TSD addresses the energy use analysis.
The LCC and PBP analyses determine the economic impact of potential standards on individual consumers. The LCC is the total cost to the consumer of purchasing, installing, and operating the considered pool heater over the course of its lifetime. The LCC analysis compares the LCCs of products designed to meet possible energy conservation standards with the LCC of the products likely to be installed in the absence of standards. DOE determines LCCs by considering: (1) Total installed cost to the purchaser (which consists of manufacturer selling price, distribution chain markups, sales taxes, and installation cost); (2) the operating cost of the product (energy cost and maintenance and repair cost); (3) product lifetime; and (4) a discount rate that reflects the real consumer cost of capital and puts the LCC in present-value terms. The PBP represents the number of years needed to recover the increase in purchase price (including installation cost) of higher-efficiency products through savings in the operating cost of the products. PBP is calculated by dividing the incremental increase in installed cost of the higher-efficiency products, compared to the baseline products, by the annual savings in operating costs. Chapter 8 of the preliminary TSD addresses the LCC and PBP analyses.
The NIA estimates the national energy savings (NES) and the net present value (NPV) of total consumer costs and savings expected to result from amended standards at specific efficiency levels (referred to as candidate standard levels). DOE calculated NES and NPV for each candidate standard level for electric pool heaters as the difference between a base-case forecast (without amended standards) and the standards-case forecast (with standards). DOE determined national annual energy consumption by multiplying the number of units in use (by vintage) by the average unit energy consumption (also by vintage). Cumulative energy savings are the sum of the annual NES determined for the lifetime of the products shipped from 2022-2051. This 30-year analysis period begins in 2022, the expected first full year of compliance with the amended standards. The NPV is the sum over time of the discounted net savings each year, which consists of the difference between total operating cost savings and increases in total installed costs. Critical inputs to this analysis include shipments projections, estimated product lifetimes, product installed costs and operating costs, product annual energy consumption, the base case efficiency projection, and discount rates. Chapter 10 of the preliminary TSD addresses the NIA.
DOE invites input from the public on all the topics described above. The preliminary analytical results are subject to revision following further review and input from the public. A complete TSD is available for this analysis, and the Executive Summary of the TSD identifies specific issues on which DOE seeks comment. The final rule establishing any amended energy conservation standards will contain the final analytical results and will be accompanied by a final rule TSD.
The TSD is available at:
DOE welcomes all interested parties to submit in writing by December 10, 2015 comments, data, and other information on matters addressed in the TSD and on other matters relevant to consideration of energy conservation standards for pool heaters.
After the closing of the comment period, DOE will consider all timely-submitted comments and additional information obtained from interested parties, as well as information obtained through further analyses. Afterward, DOE will publish either a determination that standards for electric pool heaters need not be established or a NOPR proposing to establish those standards. The NOPR would include proposed energy conservation standards for the products covered by the rulemaking, and members of the public would be given an opportunity to submit written and oral comments on the proposed standards.
DOE will accept comments, data, and other information regarding this rulemaking no later than the date provided at the beginning of this document. Please submit comments, data, and other information as provided in the
Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document including all the information believed to be confidential and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination as to the confidential status of the information and treat it according to its determination.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) a date upon which such information might lose its confidential nature due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
The Secretary of Energy has approved publication of this notice of data availability of the preliminary technical support document.
U.S. Consumer Product Safety Commission.
Notice of availability.
The Consumer Product Safety Commission (“Commission,” or “CPSC”) has approved a document titled, “Plan for Retrospective Review of Existing Rules.” CPSC seeks comments on this plan.
Submit comments by December 28, 2015.
You may submit comments, identified by Docket No. CPSC-2015-0030, by any of the following methods:
Patricia K. Adair, Directorate for Engineering Sciences, U.S. Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850-3213; telephone: (301) 987-2238; email:
The Commission has approved a Plan for Retrospective Review of Existing Rules (“Plan”) that sets forth a method for identifying and reconsidering certain rules that are obsolete, unnecessary, unjustified, excessively burdensome, counterproductive, or ineffective, or that otherwise would benefit from modification. The Plan's review processes are intended to facilitate the identification of rules that warrant repeal or modification, including those that could benefit from strengthening, complementing, or modernizing. The Plan is consistent with Executive Orders 13579,
U.S. Consumer Product Safety Commission.
Extension of comment period and notice of opportunity for oral presentation of comments.
The United States Consumer Product Safety Commission (“Commission” or “CPSC”) on August 19, 2015 published a notice that the Commission received a petition for rulemaking under the Federal Hazardous Substances Act (“FHSA”) regarding additive organohalogen flame retardants. The notice invited the public to submit written comments concerning the petition by October 19, 2015. The Commission has received two requests to extend the comment period. In response to these requests, the Commission is extending the comment period to January 19, 2016. Additionally, the Commission announces that there will be an opportunity for interested persons to present oral comments on the petition.
The comment period for the proposed rule published August 19, 2015 (80 FR 50238), is extended. Submit comments by January 19, 2016. The meeting for interested persons to present oral comments on the petition will begin at 10 a.m., December 9, 2015, at 4330 East-West Highway, Bethesda, MD 20814. Requests to make oral presentations and the written text of any oral presentations must be received by the Office of the Secretary not later than 5 p.m. Eastern Standard Time (EST) on December 2, 2015.
You may submit comments, identified by Docket No. CPSC-2015-0022, by any of the following methods:
For information about the procedure to make an oral presentation, contact Rockelle Hammond, Office of the Secretary, Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814; telephone (301) 504-7923.
On July 1, 2015, the Commission received a petition requesting that the Commission initiate rulemaking under the FHSA to declare several categories of products containing additive organohalogen flame retardants to be “banned hazardous substances.” The petition was filed by Earthjustice and the Consumer Federation of America, which are joined by American Academy of Pediatrics, American Medical Women's Association, Consumers Union, Green Science Policy Institute, International Association of Fire Fighters, Kids in Danger, Philip Landrigan, M.D., M.P.H., League of United Latin American Citizens, Learning Disabilities Association of America, and Worksafe.
On August 19, 2015, the Commission issued a notice that the Commission received the petition, and in the document, invited submission of written comments concerning the petition. 80 FR 50238. The Commission has received two requests to extend the comment period 90 days, due to the breadth and complexity of issues raised in the petition. The Commission has considered the requests and is extending the comment period until January 19, 2016.
The Commission is providing a forum for oral presentations concerning the petition regarding additive organohalogen flame retardants. See the information under the headings
Participants should limit their presentations to approximately 10 minutes, exclusive of any periods of questioning by the Commissioners or CPSC staff. To prevent duplicative presentations, groups will be directed to designate a spokesperson. The Commission reserves the right to limit the time further for any presentation and impose restrictions to avoid excessive duplication of presentations.
Federal Communications Commission.
Proposed rule.
In this document, the International Bureau of the Commission invites interested parties to provide any supplemental information or comments concerning the Commission's proposed ground-path interference rules for 17/24 GHz Reverse Band Broadcasting-Satellite Service (BSS) operations.
This request is intended to refresh the record in this proceeding, and to provide parties with the opportunity to update or add to their comments, as well as allowing parties who have not filed comments in this proceeding previously to do so.
Submit comments on or before November 25, 2015, and replies on or before December 10, 2015.
You may submit comments, identified by IB Docket No. 06-123, by any of the following methods:
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
This is a summary of the Public Notice in IB Docket No. 06-123, DA 15-1147, adopted October 7, 2015, and released October 7, 2015. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW., Washington, DC 20554. The document also is available for download over the Internet at
On May 2, 2007, the Commission proposed rules in a Further Notice of Proposed Rulemaking (FNPRM) to mitigate ground path interference. The ground path interference issues in this proceeding have been considered and discussed among the interested parties previously. Since considerable time has passed, however, since the release of the FNPRM, the Commission asks the public to provide any updates for the record and any additional comments on the proposed rules for ground path interference mitigation in 17/24 GHz reverse-band BSS operations presented in the FNPRM.
Stephen Duall or Sean O'More, International Bureau, FCC, (202) 418-2453 or via the email to:
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
This document does not contain proposed information collection requirements required by the Paperwork Reduction Act of 1995, Public Law 104-13. It also does not impose information collection burdens for small business concerns with fewer than 25 employees pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
Federal Communications Commission.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
90-day petition finding, request for information.
We, NMFS, announce a 90-day finding on a petition to list a “Northwest Atlantic Distinct Population Segment” (DPS) or “United States DPS” of thorny skate (
Information and comments on the subject action must be received by December 28, 2015.
You may submit comments, information, or data on this document, identified by NOAA-NMFS-2015-0120, by either any of the following methods:
•
•
Copies of the petition and related materials are available on our Web site at:
Julie Crocker, Protected Resources Division, 978-281-9328, or Marta Nammack, NMFS-HQ, Protected Resources Office, (301) 427-8469.
On May 28, 2015, we received a petition from Defenders of Wildlife and Animal Welfare Institute to list a “Northwest Atlantic DPS” of thorny skate as threatened or endangered under the ESA, or, as an alternative, to list a “United States DPS” as threatened or endangered. The petition also requests that we designate critical habitat for thorny skate. Copies of the petition are available from us (see
Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531
Under the ESA, a listing determination may address a species, which is defined to also include subspecies and, for any vertebrate species, any DPS that interbreeds when mature (16 U.S.C. 1532(16)). A joint NMFS-U.S. Fish and Wildlife Service (USFWS) (jointly, “the Services”) policy clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered based on any one or a combination of the following five section 4(a)(1) factors: the present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(b)) define “substantial information” in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In evaluating whether substantial information is contained in a petition, the Secretary must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).
At the 90-day finding stage, we evaluate the petitioners' request based upon the information in the petition including its references and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioners' sources and characterizations of the information presented if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude it supports the petitioners' assertions. In other words, conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone negates a positive 90-day finding if a reasonable person would conclude that the unknown information itself suggests an extinction risk of concern for the species at issue.
To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species faces an
Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information indicating that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.
Many petitions identify risk classifications made by nongovernmental organizations, such as the International Union on the Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or state statutes may be informative, but such classification alone may not provide the rationale for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species' conservation status do “not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act” because NatureServe assessments “have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” (
The thorny skate occurs on both sides of the Atlantic. In the western North Atlantic, it ranges from western Greenland to South Carolina, and in the eastern North Atlantic, it ranges from Iceland to the southwestern coasts of Ireland and England (Bigelow and Schroeder, 1953). This species is characterized by a row of 11 to 19 large thorns running down the midline of the back and tail (Bigelow and Schroeder, 1953; Collette and Klein-MacPhee, 2002). Thorny skate are generally brown dorsally with a white ventral surface. They may reach lengths of over 39 inches (991 mm), but maximum size varies over its range.
According to Collette and Klein-MacPhee (2002), females deposit a single fertilized egg capsule, which ranges in size from 2 to 4 inches (48 to 96 mm) in length and 1.33 to 3 inches (34 to 77 mm) in width. While females with fully formed egg capsules are captured year round, the percentage of mature females with capsules is highest during the summer (Collette and Klein-MacPhee, 2002). Thorny skate feed on benthic invertebrates and fish. Thorny skates are found over a wide variety of substrates including sand, broken shell, gravel, pebbles, and soft mud and are primarily found from 20 to 3,900 feet (18 to 1200 m) deep (Collette and Klein-MacPhee, 2002). They appear to make seasonal migrations that have been noted on the Scotian Shelf and the Grand Banks, but specific details on the spatial patterns and timing are lacking (NEFSC, 2003). Kulka and Miri (2003) report a change in the spring and fall distributions resulting in a higher density and greater proportion of biomass being found in deeper waters during the spring. These aggregations, they note, appear to be correlated with warmer relative temperatures.
Sulikowski
We have determined, based on the information provided in the petition and readily available in our files, that substantial information is presented in the petition indicating that the petitioned action may be warranted. The petition contains a recommended administrative measure, provides the scientific and common name, contains a detailed narrative justification for the recommended measure, provides information on the status of the species, and includes supporting documentation. Below is a synopsis of our analysis of the information provided in the petition and readily available in our files to determine whether a reasonable person would conclude that an endangered or threatened listing may be warranted as a result of any of the factors listed under section 4(a)(1) of the ESA.
The petitioners state that the IUCN lists the U.S. population of thorny skates as “Critically Endangered” and the Canadian population as “Vulnerable” throughout its range in the Northwest Atlantic Ocean. They conclude that the IUCN categorization proves that reasonable people have determined that the best available scientific evidence shows that the species is likely to be endangered or threatened as those terms are defined in the ESA. They state that the IUCN classification of the U.S. population of thorny skates as “Critically Endangered” means that the species is as close to extinction in the wild as possible. However, species classifications by the IUCN and under the ESA are not equivalent. We will evaluate the information that the IUCN classification is based upon in light of the ESA's standards on extinction risk and impacts or threats discussed previously.
The IUCN reviewed the status of thorny skate in 2004 and concluded that the extent of decline warranted an assessment of vulnerable globally, but critically endangered in U.S. waters. They noted that the species was relatively stable in recent years in Canada and the Northeast Atlantic yet declining in the United States. The species was assessed as “Least Concern” in the Northeast Atlantic. They also noted that the overall abundance (whether divided among subpopulations or not) still constitutes several hundred million individuals. The minimum biomass for the Northwest Atlantic was estimated at 100,000 tons, which has
The petitioners cite the 2008 Skate Stock Assessment and Fishery Evaluation (SAFE) Report prepared by the Northeast Fisheries Science Center (NEFSC) as demonstrating a precipitous decline in thorny skate abundance and biomass in United States waters since the late 1970s. Skate biomass has been monitored annually by the NEFSC bottom trawl survey since 1963. The survey occurs from Cape Lookout to the Scotian Shelf. Currently, this survey is the only long-term, comprehensive source of information on the relative abundance of thorny skates in U.S. waters, which are primarily distributed in the Gulf of Maine. Based on this information, the survey biomass index of thorny skates has steadily declined from a high 3-year average of 6.17 kg/tow in 1969 to 1971, to a low of 0.12 kg/tow in 2011 to 2013. The petition notes that when the Northeast skate complex Fishery Management Plan (FMP) was implemented by us in 2003, thorny skate was determined to be “overfished” because the biomass index that year (0.74 kg/tow) was below the established biomass threshold (2.2 kg/tow) and below the biomass target (4.41 kg/tow). The petitioners correctly note that the current biomass threshold and biomass target are 2.06 and 4.13 kg/tow, respectively. The petitioners correctly state that the most recent 3-year average mean biomass survey from 2011-2013 (0.12 kg/tow) is the lowest in the time series and that we have determined that overfishing is occurring. A stock that is subject to overfishing has a harvest rate higher than the rate that produces its “maximum sustainable yield” (MSY). MSY is the largest long-term average catch that can be taken from a stock under prevailing environmental and fishery conditions. A stock that is overfished has a population size that is too low and would jeopardize the stock's ability to produce its MSY. “Overfished” can be the result of many factors, including, but not limited to, overfishing.
The petitioners further state that Canadian indices of thorny skate have also demonstrated a precipitous decline over the past four decades. They reference a report by Canada's Committee on the Status of Endangered Wildlife in Canada (COSEWIC 2012) noting that thorny skate dominates Canadian catches of skate species, composing approximately 90 percent of rajids caught in survey trawls (COSEWIC 2012). In 2012, COSEWIC, which was established as a legal entity under Canada's Species at Risk Act, published an assessment of the status of thorny skate in Canada and classified thorny skate as a “species of special concern;” COSEWIC assessments are considered advice to the Government of Canada on the status of wildlife species, but it is up to the Governor in Council (a subcommittee of federal cabinet ministers), on the recommendation of the Minister of the Environment, to decide whether such species should be added to the List of Wildlife Species at Risk. A COSEWIC assessment of “species of special concern” means that thorny skate may become “a threatened or an endangered species because of a combination of biological characteristics and identified threats.” COSEWIC made this designation because the species has undergone severe population declines over the southern part of its distribution in Canada (specifically, the Scotian Shelf/Bay of Fundy and Georges Bank areas), its range has contracted, and declines have continued in spite of a reduction in fishing mortality. However, the report also notes that the abundance of mature individuals in the northern part of its range has been increasing and is approaching 1970s abundance levels. The report indicates that on the Scotian Shelf and Bay of Fundy, the abundance of immature skates has declined over 76 percent from 1970 to 2010 and that the rate of decline for mature skates was 95 percent over the same period. The authors note that there is no evidence that these declines are due to individuals moving north. The report also indicates that the abundance of juvenile thorny skates on Georges Bank declined by 40 percent from 1987-2008, and the abundance of adults declined by 85 percent over the same period. In the southern Gulf of St. Lawrence, abundance of thorny skate of all sizes has fluctuated between 1971 and 2010 and was lower at the end of the time series. The report notes that adults declined by 95 percent from 1971-2010 and that this matches increases in natural mortality over this period (citing Benoit and Swan 2011). The rate of decline for juveniles over this period was 32 percent, although there was an increase from 2003-2010. They note the uncertainty with how an apparently large number of juveniles could be produced by so few adults. Abundance trends could not be calculated for the Baffin Bay/Davis Strait/Ungava Bay region. Based on limited data, the report concludes that thorny skate abundance in the Grand Banks to Labrador Shelf area has fluctuated without trend between 1978 and 2010. On the southern Labrador Shelf, thorny skate declined until 1995 and then stabilized or increased thereafter. For example, adults declined by 91 percent from 1997 to 1994 but subsequently increased by 821 percent from 1995 to 2008. Similar patterns of decline and then increased abundance are reported for the Grand Banks.
The petitioners state that since the mid-1980s, the range of the thorny skate on the Grand Banks has been contracting (Kulka and Miri 2003). They cite evidence of a hyper-aggregation with 80 percent of the biomass now concentrated in 20 percent of the area along the southwest slope of the Grand Banks (Kulka
Kulka and Miri (2006) noted that the average weight of thorny skate had declined from 2 kg in the early 1970s to 1.2 kg in 1996 with the majority of this decline occurring in the 1990s concurrent with the decline in biomass. They reported that average size had increased to about 1.6 kg since that time. They note that the decline of thorny skate, particularly on the
In conclusion, in the southern part of its range in Canada, and in the United States, we find evidence suggesting that population abundance of thorny skate has continued to decline, and in the northern part of its range thorny skate may be stable at a diminished abundance. While data are still limited with respect to population size and trends, we find the petition and our files contain sufficient information on thorny skate trends and status to indicate that the petitioned action may be warranted.
The petition requests that we list the thorny skate population in the Northwest Atlantic as a threatened or endangered DPS and presents arguments that thorny skate in the Northwest Atlantic meet the criteria to be considered a DPS, as described in the 1996 joint NMFS and the U.S. Fish and Wildlife Service DPS policy (61 FR 4722; February 7, 1996). Alternatively, the petition requests that we list the thorny skate population in the United States as a threatened or endangered DPS and presents arguments that thorny skate in U.S. waters meet requirements for being identified as a DPS eligible for listing. Our DPS policy identifies two elements that must be considered when identifying a DPS: (1) The discreteness of the population segment in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the significance of the population segment to the species to which it belongs. A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors—quantitative measures of genetic or morphological discontinuity may provide evidence of this separation; or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA. If a population segment is considered discrete under one or more of the above conditions, its biological and ecological significance will then be considered in light of Congressional guidance (see Senate Report 151, 96th Congress, 1st Session) that the authority to list DPSs be used “sparingly” while encouraging the conservation of genetic diversity. In carrying out this examination, the Services will consider available scientific evidence of the discrete population segment's importance to the taxon to which it belongs. This consideration may include, but is not limited to, the following: (1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon; (3) evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; or (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.
The petitioners state the Northwest Atlantic thorny skate population, encompassing Canadian and U.S. waters, satisfies both the “discrete” and “significant” requirements for DPS identification. They state that the Northwest Atlantic population is discrete because it is markedly separated from other populations due to physical and biological factors.
The petitioners describe the results of tagging studies (Templeman 1984, Templeman 1987, Walker
The petitioners present some information on available genetic studies of thorny skate. They state that the findings of Coulson
The petitioners interpret Chevolet
The available genetic studies present conflicting information on the potential for significant differences between populations of thorny skate. We conclude that, viewed together, the genetics and tagging information presented in the petition combined with the information in our files present sufficient evidence that the DPS policy's criterion for discreteness may be met for the Northwest Atlantic population of thorny skate.
The petitioner argues that thorny skate in the Northwest Atlantic are significant because the loss of this population would result in a significant reduction in the species' range with no significant evidence that populations outside of this range could recolonize these waters. While not clearly stated, we presume the petitioners based this on the tagging information presented in their arguments for discreteness. The petitioners also claim that the separate assessments and classifications of the Northwest and Northeast Atlantic stocks of thorny skate by the IUCN are evidence that the populations are discrete and significant. The petitioners do not present any analysis to support the claim that the IUCN stock determination is equivalent to a determination that a population meets the significance criterion in the DPS policy. However, based on the tagging information, we conclude that the petition presents sufficient evidence that the DPS policy's criterion for significance, particularly the “significant gap” consideration, may be met for the Northwest Atlantic population of thorny skate. Because the Northwest population of thorny skate may qualify as a DPS, we will consider it a potentially listable entity for purposes of this 90-day finding, and whether the Northwest Atlantic population of thorny skate constitutes a DPS will receive further analysis in the status review.
The petition claims the thorny skate population in U.S. waters also satisfies the discreteness and significance criteria for DPS designation. The petition claims that the U.S. population is discrete, because it is delimited by international governmental boundaries (delineating the United States and Canada) and significant differences exist in the control of exploitation, conservation status, and regulatory mechanisms. The petition presents information on differences in management regimes between the United States and Canada, notably that possession and landing of thorny skate is prohibited in the United States and a directed fishery occurs for thorny skate in Canada and suggests that regulatory mechanisms in Canada are inadequate. The petition also describes management by the Northwest Atlantic Fisheries Organization (NAFO), which sets catch limits for thorny skate in the Northwest Atlantic. The petitioners claim that evidence suggests that the U.S. DPS may be discrete because it is markedly separated from the Canadian population as a consequence of physical and/or ecological factors. To support this, the petitioners point to the hyper-aggregated population along the southwest slope of the Grand Banks in Canadian waters (Kulka
The petition provides information on all five factors but asserts that the continued survival of the thorny skate is endangered by three of the five factors specified in section 4(a)(1) of the ESA: (B) Overutilization for commercial, recreational, scientific, or educational purposes; (D) inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence.
Skates are harvested in two different fisheries, one for lobster bait and one for wings for food. The fishery for lobster bait is a more historical and directed skate fishery, involving vessels primarily from Southern New England ports that target a combination of little skates and to a much lesser extent, juvenile winter skates. The fishery for skate wings evolved in the 1990s as skates were promoted as an underutilized species. The wing fishery involves a larger number of vessels located throughout the region. Vessels tend to catch skates when targeting other species like groundfish, monkfish, and scallops and land them if the price is high enough (NEFMC 2009).
Thorny skates in the Atlantic U.S. Exclusive Economic Zone have been managed under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by the New England Fishery Management Council's fishery management plan for the Northeast (NE) Skate Complex (Skate FMP) since September 2003. Since that time, possession and landing of thorny skates has been prohibited, but the survey biomass index has continued to decline. It is important to note that based on the limited productivity of this species (long-lived, late maturity, low fecundity, etc.), rebuilding to target levels (4.12 kg/tow) was estimated to take at least 25 years (
The petition states that population estimates for the thorny skate in Canadian waters indicate stable, but not increasing numbers, and in the waters of the United States, biomass indices have been declining for decades, despite the federal ban on the landing and possession of thorny skates since 2003. The petition claims that thorny skate populations have been historically exploited at unsustainable rates. They state that participation in the commercial skate wing fishery in the Northwest Atlantic has grown dramatically over the past 30 years. They cite the initiation of a directed skate fishery in Canada in 1994 and an increase in skate landings in U.S. waters between the early 1980s and 2007. The petitioners note that biomass indices in Canada indicate that the species is maintaining relatively stable population numbers at very low levels. They claim the thorny skate population in U.S. waters continues to decline and state that the lack of regulation prior to 2003 reduced the population. The petitioners claim that current, and historical, overfishing has deleterious effects on the species population in U.S. waters and is a significant factor in the species' continued decline.
The petitioners claim that reports of illegal thorny skate landings suggest that thorny skates are being exploited in the commercial wing market. They state
The petitioners acknowledge that in contrast to Canada's directed thorny skate fishery, in the United States, thorny skates are primarily taken as bycatch in groundfish trawl fisheries. They also acknowledge that the prohibition on retention of the species means fishermen are banned from possessing or landing thorny skates or their parts, and Federal regulations mandate the discard of any incidentally caught thorny skates. The petition cites the 2009 and 2010 Standardized Bycatch Reporting Methodology (SBRM; Wigley
The petitioners cite an estimate of 3,594 tons of thorny skate discarded from otter trawl fisheries in U.S. waters from 2003-2010. The petitioners claim that post-discard mortality for thorny skate is high and exacerbates the thorny skate's population decline and critically threatens stock rebuilding efforts. The petitioners cite Mandleman
Given the evidence of historical exploitation of the species and subsequent population declines, the continued bycatch of thorny skate, and the potentially high post-discard mortality rate, the information in the petition and in our files leads a reasonable person to conclude that the petitioned action may be warranted.
The petitioners claim that a general lack of species-specific identification, both on-boat and at landing, poses a significant threat to the thorny skate's survival in U.S. waters and that because thorny skate are a prohibited species, the likelihood that the landings are underreported is strong. They also state that misidentification and mislabeling is a problem. The petitioner states that positive species identification at landing is hindered because current regulations allow vessels to possess and/or land skates as wings only (wings removed from the body of the skate and the remaining carcasses discarded). The petitioners also state that the designation of thorny skates as “prohibited”, “overfished” and “subject to overfishing” allows room for inconsistent enforcement of the law. The petition states that the existing regulatory mechanisms provided for in the 2003 FMP are ineffective.
As noted in the petition, in 2013, we determined that overfishing is occurring for thorny skate. The determination that overfishing is occurring is made when there is a decrease of more than 20 percent between two consecutive moving averages of the biomass index. The 2011-2013 3-year average biomass index (0.12 kg/tow) is only 3 percent of the species' biomass target. This 3-year average index represents an approximately 33 percent decrease from the 2010-2012 3-year moving average (0.18 kg/tow). While not noted in the petition, in an August 2014 memorandum (August 22, 2014 memo from NEFSC to GARFO) we determined that based on new survey data collected through autumn 2013/spring 2014, thorny skate remained overfished and overfishing was still occurring. Because thorny skate are a long lived species, the species may be slow to respond to management measures. However, the determination that overfishing is occurring suggests that, despite the ban on possession or landing, fishing mortality is a threat that may warrant further consideration.
As noted in the petition, the framework for the FMP for the Northeast skate complex was adjusted in 2014 to implement a 30 percent reduction in the skate Acceptable Biological Catch (ABC). However, as noted in the petition, the
While the determinations that thorny skate is overfished and that overfishing is occurring do not alone indicate that the species may be at risk of extinction, thorny skate biomass in the United States continues to decline and appears to be at historically low levels, and information was presented suggesting that fishing may be a contributing factor to this decline. Based on the information presented in the petition as well as information in our files, we find that further evaluation of the adequacy of existing regulatory measures in the United States is needed.
While the historical lack of species-specific trends in landings and discards has hampered stock assessment efforts, recent data collection efforts have greatly improved our understanding of the species composition of the landings. As noted in the petition, in August 2014, the reporting standard was changed. Framework Adjustment 2 to
The petition also states that regulatory mechanisms in Canada are inadequate to protect thorny skate. They claim that by adopting NAFO's suggested total allowable catch (TAC) limits for skate, Canada has implemented regulations that have not successfully promoted stock rebuilding. Finally, the petition also states that Canada lacks substantive protective regulatory mechanisms for thorny skate and has not afforded a conservation status by COSEWIC. As reported in the petition, thorny skate abundance indices have stabilized in Canadian waters in recent years while biomass indices have gradually increased (DFO 2013), but both indices are at historically low levels. The petitioners argue that while the average reported annual catch from NAFO Division 3LNO from 2009-2011 is less than half the current TAC, there has been minimal to no rebuilding of the stock during this period. The petitioners claim there are no indications the stock is recovering since it was brought under management and argue that both the current TAC (reported by the petitioners as 7,000 tons, citing NAFO 2012) and the reported average skate catches are too high to promote any stock recovery. The most recent stock assessment of thorny skate in NAFO Subdivision 3PS (inside Canada's 200-mile limit) indicates the TAC has been continually reduced since 2004 (13,500 tons) and is currently at 8,500 t (DFO 2013). The Canadian research survey abundance for Subdivision 3Ps was relatively stable from 1993-2012, while the survey biomass index indicated a gradually increasing trend (DFO 2013). In NAFO divisions 3LNO, Canadian research survey indices declined rapidly until the early 1990s; abundance indices were relatively stable in 1993-2012, while the survey biomass indices have generally been increasing (DFO 2013). DFO 2013 acknowledges that since the 1980s, thorny skate has undergone substantial changes in its distribution and has become increasingly aggregated in subdivision 3Ps, and on the southern part of the Grand Banks. They state that this results in a decreasing area of occupancy and increasing catch rates in commercial fisheries occurring in those aggregation areas. The report also indicates that discarding of skate bycatch at sea remains unreported by Canadian and other fishers, which results in higher removals of thorny skate than available fisheries statistics indicate and that commercial skate landings from Canada's EEZ are not required to be reported by species. The report concludes that despite a number of years of reduced commercial landings, there was no recovery of thorny skate in the 3LNOPs stock area despite apparently stable abundance in the 3Ps portion and that biomass and abundance indices for the entire division 3LNO and subdivision 3Ps thorny skate stock area remain at relatively low levels. Based on the information presented in the petition as well as information in our files, we find that further evaluation of the adequacy of existing regulatory measures outside of the United States is needed. Given the information presented above, the information in the petition and in our files leads a reasonable person to conclude that the petitioned action may be warranted.
The petition claims that global warming poses a long-term threat to Northwest Atlantic thorny skates and their recovery from depletion. They state that the documented global ocean warming trend could result in a change in species composition in northern waters which could adversely affect the thorny skate's predator-prey dynamics or introduce new pathogens that could harm thorny skates. The petitioners provide information on sea surface temperatures and hydrography in the Gulf of Maine and state that one outcome will be reductions in phytoplankton productivity. While they state that changes at the lower levels of the food web may have consequences to animals at higher trophic levels, they provide no information on the impacts of these changes on thorny skate. The petitioners have not provided substantial information indicating that potential impacts to lower levels of the food web are causing detrimental effects to thorny skate or may be contributing or may, in the foreseeable future, contribute significantly to population declines of thorny skate to the point where the petitioned action may be warranted.
They also state that global warming could result in a contraction of the range of cold-water species such as the thorny skate. They speculate that a range contraction could be a potential factor in the decrease in thorny skate biomass in the Gulf of Maine and that the amount of thermal habitat in the 5 to 15 °C range has decreased over the past two decades. The petitioners state that the majority of thorny skates are not capable of journeys of more than 96 km and the farthest an individual has been documented traveling is 386 km (citing Templeman 1984) and that, as such, a large-scale northern migration to move away from warming waters in the southern portion of their range appears unlikely. As noted above, it is unclear what the actual maximum migratory distance for a thorny skate is. The petitioners also claim that thorny skate have experienced a northward shift in the center of their biomass. More research is necessary to investigate if there is a correlation between Gulf of Maine water temperatures and thorny skate biomass, but the available information on thorny skate temperature preferences suggests that this could be a possibility.
There is uncertainty regarding the role of temperature in driving or contributing to the historical and current distribution and abundance of thorny skate and even greater uncertainty regarding potential future impacts of climate change. Impacts from climate change to habitat availability or suitability could pose particular problems for U.S. populations of thorny skate as they are at the southern extent of the range of the species and are at historically low levels of abundance. Further review is necessary to determine if climate change is a threat to thorny skate. Given the evidence of range contraction and the uncertainty regarding the role of warming ocean waters, we conclude that the information in the petition and in our files suggests that climate change, and warming ocean waters specifically, may be impacting thorny skate to a degree that raises concern over their continued
The petitioners claim that hypoxia (oxygen deficiency) has increased in frequency, duration, and severity in coastal waters and that this decreases the abundance and diversity of benthic macrofauna (citing CSIS 2011). They also claim that the combination of hypoxia and increased water temperature would reduce the quality and size of suitable habitat for aerobic organisms whose suitable habitat is restricted by water temperature and claim that thorny skate is such a species. While acknowledging that any prediction of the effects of hypoxic zones on thorny skates is speculative, the petitioners state that any adverse impact on the species or on the abundance/distribution of its predators or prey will severely hinder the species' ability to recover. However, neither the petitioners nor the information in our files indicate that thorny skate are impacted by hypoxia or that hypoxia may be contributing significantly to population declines in thorny skates to the point where the species may be at a risk of extinction. As such, we conclude that the information presented in the petition on the threat of hypoxia does not provide substantial information indicating that hypoxia may be impacting thorny skate to a degree that the petitioned action may be warranted.
The petitioners state that the life history characteristics of thorny skate place the species at risk of adverse effects resulting from natural stochastic events. However, neither the petitioners nor the information in our files indicate that natural stochastic events are causing detrimental effects to the species or may be contributing significantly to population declines in thorny skates to the point where the species may be at a risk of extinction. As such, we conclude that the information presented in the petition on the threat of natural stochastic events does not provide substantial information indicating that such events may be impacting or may, in the foreseeable future, impact thorny skate to a degree that the petitioned action may be warranted. However, given all of the information presented above on other natural and manmade factors, particularly the warming of oceans, the information in the petition and in our files does lead a reasonable person to conclude that the petitioned action may be warranted, and it is necessary to consider the impacts from other natural and manmade factors in a status review.
We conclude that the petition presents substantial scientific or commercial information indicating that a combination of three of the section 4(a)(1) factors (overutilization for commercial, recreational, scientific, or educational purposes; inadequate existing regulatory mechanisms; and other natural or manmade factors) may be causing or contributing to an increased risk of extinction for thorny skate which needs to be further evaluated in a review of the status of the species.
After reviewing the information contained in the petition, as well as information readily available in our files, and based on the above analysis, we conclude the petition presents substantial scientific information indicating the petitioned action of listing a Northwest Atlantic or United States DPS of thorny skate as threatened or endangered may be warranted. Therefore, in accordance with section 4(b)(3)(B) of the ESA and NMFS' implementing regulations (50 CFR 424.14(b)(2)), we will commence a review of the status of the species. During our status review, we will first determine whether one of the populations identified by the petitioners meets the DPS policy criteria, and if so, whether it is threatened or endangered throughout all or a significant portion of its range. We now initiate this review, and thus, the Northwest Atlantic population of the thorny skate is considered to be a candidate species (see 69 FR 19975; April 15, 2004). To the maximum extent practicable, within 12 months of the receipt of the petition (May 28, 2016), we will make a finding as to whether listing either of the populations identified by the petitioner as DPSs as endangered or threatened is warranted as required by section 4(b)(3)(B) of the ESA. If listing a DPS is found to be warranted, we will publish a proposed rule and solicit public comments before developing and publishing a final rule. The petitioners request that we designate critical habitat for thorny skates. ESA Section 4(a)(3)(A) and its implementing regulations state that, to the maximum extent prudent and determinable, the Secretary shall, concurrently with listing a species as endangered or threatened, designate any critical habitat for that species. If a thorny skate population were to be listed as a DPS, we would follow the relevant statutory and regulatory provisions regarding the designation of critical habitat.
To ensure that the status review is based on the best available scientific and commercial data, we are soliciting information on the thorny skate. Specifically, we solicit information in the following areas: (1) Historical and current distribution and abundance of this species in the Northwest Atlantic; (2) historical and current population status and trends; (3) any current or planned activities that may adversely impact the species, especially as related to the five factors specified in section 4(a)(1) of the ESA and listed above; (4) ongoing efforts to protect and restore the species and its habitat; and (5) genetic data or other information related to possible population structure of thorny skate. We request that all information be accompanied by: (1) Supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents.
A complete list of references is available upon request (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of 12-month petition finding.
We, NMFS, announce a 12-month finding on a petition to identify and “delist” shortnose sturgeon (
This finding was made on October 26, 2015.
Information used to make this finding is available for public inspection by appointment during normal business hours at NMFS, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910. The petition and the list of the references used in making this finding are also available on the NMFS Web site at:
Lisa Manning, Office of Protected Resources, 301-427-8466; Stephania Bolden, Southeast Regional Office, 727-824-5312; Julie Crocker, Greater Atlantic Regional Office, 978-282-8480.
On September 24, 2014, we received a petition from Dr. Michael J. Dadswell, Dr. Matthew K. Litvak, and Mr. Jonathan Barry regarding the population of shortnose sturgeon (
The shortnose sturgeon was originally listed as an endangered species throughout its range by the U.S. Fish and Wildlife Service (USFWS) on March 11, 1967, under the Endangered Species Preservation Act (ESPA, 32 FR 4001). Shortnose sturgeon remained on the endangered species list when the U.S. Congress replaced the ESPA by enacting the Endangered Species Conservation Act of 1969, which was in turn replaced by the Endangered Species Act of 1973 (ESA, 16 U.S.C. 1531
We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531
Congress has instructed the Secretary to exercise the authority to recognize DPS's “sparingly and only when the biological evidence indicates that such action is warranted” (S. Rep. 96-151 (1979)). The law is not settled as to the extent of the Services' discretion to modify a species-level listing to recognize a DPS having a status that differs from the original listing. In a recent decision, the United States District Court for the District of Columbia held that the ESA does not permit identification of a DPS solely for purposes of delisting.
A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). We interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future. In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened). In addition, we interpret “foreseeable future” as the horizon over which predictions about the conservation status of the species can be reasonably relied upon.
Pursuant to the ESA and our implementing regulations, the determination of whether a species is threatened or endangered shall be based on any one or a combination of the following five section 4(a)(1) factors: The present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and any other natural or manmade factors affecting the species' existence. 16 U.S.C. 1533(a)(1); 50 CFR 424.11(c). Listing determinations must be based solely on the best scientific and commercial data available, after conducting a review of the species' status and after taking into account any efforts being made by any state or foreign nation (or any political subdivision of such state or foreign nation) to protect the species. 16 U.S.C. 1532(b)(1)(A).
Under section 4(a)(1) of the ESA and the implementing regulations at 50 CFR 424.11(d), a species shall be removed from the list if the Secretary of Commerce determines, based on the best scientific and commercial data available after conducting a review of the species' status, that the species is no longer threatened or endangered because of one or a combination of the section 4(a)(1) factors. The regulations provide that a species listed under the ESA may be delisted only if such data substantiate that it is neither endangered nor threatened for one or more of the following reasons:
(1)
(2)
(3)
To complete the required finding in response to the current delisting petition, we first evaluated whether the petitioned entity meets the criteria of the DPS Policy. As we noted in our initial petition finding, a determination whether to revise a species-level listing to recognize one or more DPSs in place of a species-level listing involves, first, determining whether particular DPS(s) exist(s) (based on meeting the criteria of the DPS Policy) and, if that finding is affirmative, complex evaluation as to the most appropriate approach for managing the species in light of the purposes and authorities under the ESA.
Below, we summarize basic life history information for shortnose sturgeon. A more thorough discussion of all life stages, reproductive biology, habitat use, abundance estimates and threats are provided in the Shortnose Sturgeon Biological Assessment completed by the Shortnose Sturgeon Status Review Team in 2010 (SSRT 2010;
There are 25 species and four recognized genera of sturgeons (family Acipenseridae), which comprise an ancient and distinctive assemblage with fossils dating to at least the Upper Cretaceous period, more than 66 million years ago (Findeis 1997). The shortnose sturgeon,
Shortnose sturgeon occur along the East Coast of North America in rivers, estuaries, and marine waters. Historically, they were present in most major rivers systems along the Atlantic coast (Kynard 1997). Their current riverine distribution extends from the Saint John River, New Brunswick, Canada, to possibly as far south as the St. Johns River, Florida (Figure 1; Kynard 1997; Gorham and McAllister 1974). Recently available information indicates that their marine range extends farther northward than previously thought and includes the Minas Basin, Nova Scotia (Dadswell
Shortnose sturgeon typically migrate seasonally between upstream freshwater spawning habitats and downstream foraging mesohaline (
Shortnose sturgeon are benthic feeders, and their diet typically consists of small insects, crustaceans, mollusks, polychaetes, and small benthic fishes (McCleave
Foraging in the colder rivers in the northern part of their range appears to greatly decline or cease during winter months when shortnose sturgeon generally become inactive. In mid-Atlantic areas, including the Chesapeake Bay, and the Delaware River, foraging is believed to occur year-round, though shortnose sturgeon are believed to feed less in the winter (J. O'Herron, Amitrone O'Herron, Inc., pers. comm. 2008 as cited in SSRT 2010). In the southern part of their range, shortnose sturgeon are known to forage widely throughout the estuary during the winter, fall, and spring (Collins and Smith 1993, Weber
Shortnose sturgeon are relatively small compared to most extant sturgeon species and reach a maximum length of about 120 cm total length (TL) and weight of about 24 kg (Dadswell 1979; Waldman
Shortnose sturgeon are relatively long-lived and slow to mature. The oldest shortnose sturgeon reported was a 67 year-old female from the Saint John River, and the oldest male reported was a 32 year-old fish, also captured in the Saint John River (Dadswell 1979). In general, fish in the northern portion of the species' range live longer than individuals in the southern portion of the species' range (Gilbert 1989). Males and females mature at about the same length, around 45-55 cm FL, throughout their range (Dadswell
Sturgeon are iteroparous, meaning they reproduce more than once during their lifetime. In general, male shortnose sturgeon are thought to spawn every other year, but they may spawn annually in some rivers (Dovel
In a review by Gilbert (1989), fecundity of shortnose sturgeon was reported to range between approximately 30,000-200,000 eggs per female. Shortnose sturgeon collected from the Saint John River had a range of 27,000-208,000 eggs and a mean of 11,568 eggs/kg body weight (Dadswell 1979). Development of the eggs and transition through the subsequent larval, juvenile and sub-adult life stages are discussed in more detail in SSRT 2010.
A total abundance estimate for shortnose sturgeon is not available. However, population estimates, using a variety of techniques, have been generated for many individual river systems. In general, northern shortnose sturgeon population abundances are greater than southern populations (Kynard 1997). The Hudson River shortnose sturgeon population is currently considered to be the largest extant population (61,000 adults, 95 percent CI: 52,898-72,191; Bain
The most recent total population estimate for the Saint John River dates to the 1970's. Using tag recapture data from 1973-1977, Dadswell (1979) calculated a Jolly-Seber population estimate of 18,000 (±30% SE; 95 percent CI: 7,200-28,880, COSEWIC, In Press) adults (> 50 cm) below the Mactaquac Dam. Several partial population estimates are also available for the Kennebecasis River, a tributary in the lower reaches of the Saint John River. Litvak (unpublished data) calculated a Jolly-Seber estimate of 2,068 fish (95% CI: 801-11,277) in the Kennebecasis using mark-recapture data from 1998 to 2004 (COSEWIC, In Press). Based on videotaping of overwintering aggregations of shortnose sturgeon on the Kennebecasis River at the confluence of the Hammond River (rkm 35), Li
Threats that contributed to the species' decline and led to the listing of shortnose sturgeon under the ESA included pollution, overfishing, and bycatch in the shad fishery (USDOI 1973). Shortnose sturgeon were also thought to be extirpated, or nearly so, from most of the rivers in their historical range (USDOI 1973). In the late nineteenth and early twentieth centuries, shortnose sturgeon were commonly harvested incidental to Atlantic sturgeon, the larger and more commercially valuable of these two sympatric sturgeon species (NMFS 1998). Although there is currently no legal directed fishing for shortnose sturgeon in the United States, poaching is suspected, and bycatch still occurs in some areas. In particular, shortnose sturgeon are caught incidentally by bass anglers and in the alewife/gaspereau, American shad, American eel, and Atlantic sturgeon fisheries in the Saint John River; and shad fisheries in the Altamaha River, Santee River, Savannah River, and elsewhere (COSEWIC, In Press; SSRT 2010; Bahn
The following sections provide our analysis of whether the petitioned entity—the Saint John River population of shortnose sturgeon—qualifies as a DPS of shortnose sturgeon (whether it is both “discrete” and “significant”). To complete this analysis we relied on the best scientific and commercial data available and considered all relevant literature and public comments submitted in response to our 90-day finding (80 FR 18347, April 6, 2015).
For purposes of this analysis, we defined the Saint John River population segment of shortnose sturgeon to consist of shortnose sturgeon spawned in the Saint John River downstream of the Mactaquac Dam. Prior to construction of Mactaquac Dam in 1968/1969, sturgeon occurred upstream of the dam; however, it is unclear whether these were shortnose and/or Atlantic sturgeon and whether any sturgeon are still present upstream of the dam (COSEWIC, In Press). Lacking this information, we cannot consider fish that may be present upstream of the dam in our distinct population segment analysis. Throughout our discussion below we also use the term “population” to refer collectively to all shortnose sturgeon that are presumed to be natal to a particular river rather than using this term to refer strictly to a completely closed reproductive unit.
The Services' joint DPS Policy states that a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions:
(1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.
(2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA (61 FR 4722, February 7, 1996).
There are no physical barriers preventing the movement of Saint John River shortnose sturgeon outside of the Saint John River estuary or along the coast. The Mactaquac Dam, located about 140 km upstream and at the head of tide (Canadian Rivers Institute 2011), is the first upstream physical barrier on the Saint John River. This and other dams on the Saint John River block shortnose sturgeon from accessing upstream habitats, but there are no dams or other physical barriers separating Saint John River sturgeon from other shortnose sturgeon populations.
As mentioned previously, shortnose sturgeon have been documented to leave their natal river/estuary and move to other rivers to varying extents across their range. For example, telemetry data generated by Zydlewski
Many inter-riverine movements have been observed elsewhere within the species' range, but patterns are not yet well resolved. For example, some shortnose sturgeon captured and/or tagged in the Connecticut River have been recaptured, detected, or were previously tagged in the Housatonic River (T. Savoy, CT DEP, pers. comm. 2015), the Hudson River (Savoy 2004), and the Merrimack River (M. Kieffer, USGS, pers. comm. 2015). At this time, the available tagging and tracking information is too limited to determine if Hudson River and Connecticut River shortnose sturgeon are making regular movements outside of their natal rivers and whether movement as far as the Merrimack River is a normal behavior. Movement data from the Chesapeake Bay is also relatively limited, but existing data indicate that shortnose sturgeon do move from the Chesapeake Bay through the Chesapeake and Delaware Canal into the Delaware River (Welsh
The distances of the reported marine migrations vary widely from very short distances—such as between the Santee River and Winyah Bay, which are only about 15 km apart—to fairly long—as in the case of movements between the Merrimack and the Penobscot rivers, which are about 339 km apart at their mouths.
The extent of coastal movements of shortnose sturgeon from the Saint John River is currently unknown (COSEWIC, In Press); however, some limited data are available and provide some insight into whether these fish may be geographically isolated from other populations. Any movement between Saint John River sturgeon and the nearest population in the Penobscot River would require a marine migration of about 362 km, a similar travel distance as between the Merrimack and the Penobscot rivers (340 km) and between the Connecticut and Merrimack rivers (348 km).
Overall, while there is unambiguous evidence that shortnose sturgeon from the Saint John River leave the estuary—at least occasionally—and use the marine environment, and that shortnose sturgeon are capable of making long distance movements between river systems, there are no available data on coastal migrations of Saint John River shortnose sturgeon. To date, there are also no reported observations or detections of shortnose sturgeon from the Gulf of Maine rivers moving into the Saint John River. Thus, while it is possible that the Saint John River shortnose sturgeon come in contact with shortnose sturgeon from elsewhere, it is also likely that some degree of geographical isolation by distance is occurring.
Although acoustic telemetry studies have revealed that shortnose sturgeon leave their natal river systems to a much greater extent than previously thought, such movements do not necessarily constitute permanent emigration or indicate interbreeding of populations. Tagging and telemetry studies within several river systems have provided evidence that shortnose sturgeon in those particular systems tend to spawn in their natal river (
A substantial amount of genetic data has become available since the “Final Recovery Plan for Shortnose Sturgeon” was developed in 1998. Below, we summarize the best available genetic data and information, which informed our evaluation of the “discreteness” of the Saint John River population segment. A more in-depth presentation of genetic data, including discussions of types of analyses and assumptions, is available in the Biological Assessment (SSRT 2010).
Much of the published information on population structure for shortnose sturgeon has been based on the genetic analysis of the maternally inherited mitochondrial DNA (mtDNA) due in part to the difficulties of analyzing data from the polyploid nuclear genome (Waldman
Despite the localized sharing of haplotypes, frequencies of the observed haplotypes are significantly different in most pairwise comparisons of the rivers sampled (
Estimates of female-mediated gene flow between the Saint John River and the Gulf of Maine rivers are fairly low. Wirgin
More recently, King
Subsequent analyses revealed that each of the three regions has a different pattern of sub-structuring. Within the Northeast group, two separate analyses (PCO and STRUCTURE) indicated a high degree of relatedness and possible panmixia (
Theoretical estimates of gene flow (derived from Phi
Overall, the analyses completed by King
As highlighted in the DPS Policy, quantitative measures of morphological discontinuity or differentiation can serve as evidence of marked separation of populations. We examined whether the morphological data for shortnose sturgeon across its range provide evidence of marked separation of the Saint John River population. As noted previously, maximum adult size (length and weight) varies across the range, with the largest maximum sizes occurring in the Saint John River at the northernmost end of the range, and the smallest sizes occurring in rivers at the southern end of the range (Dadswell
In addition to body size, other attributes such as snout length, head length, and mouth width can provide evidence of a morphological
In conclusion, although the currently available data do not show that the Saint John River shortnose sturgeon constitute a completely isolated or closed population, we find that available genetic data, evidence of site fidelity, and the likelihood of some degree of geographical isolation together constitute sufficient information to indicate that the Saint John River shortnose sturgeon are markedly separated from other populations of shortnose sturgeon. Thus, after considering the best available data and all public comments submitted in response to our initial petition finding, we conclude that the Saint John River population segment of shortnose sturgeon is “discrete.” We therefore proceeded to evaluate the best available data with respect to the second criterion of the DPS Policy, “significance.”
Under the DPS Policy, if a population segment is found to be discrete, then we proceed to the next step of evaluating its biological and ecological significance to the taxon to which it belongs. As we explained above, a population must be both “discrete” (the first prong of the DPS Policy) and “significant” (the second prong of the DPS Policy) to qualify for recognition as a DPS.
Consideration of significance may include, but is not limited to: (1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that the loss of the discrete population segment would result in a significant gap in the range of a taxon; (3) evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range; and (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics (61 FR 4722, February 7, 1996). These four factors are non-exclusive; other relevant factors may be considered in the “significance” analysis. Further, significance of the discrete population segment is not necessarily determined by existence of one of these classes of information standing alone. Rather, information analyzed under these and any other applicable considerations is evaluated relative to the biological and ecological importance of the discrete population to the taxon as a whole. Accordingly, all relevant and available biological and ecological information is analyzed to determine whether, because of its particular characteristics, the population is significant to the conservation of the taxon as a whole.
Shortnose sturgeon once occupied most major rivers systems along the Atlantic coast of North America (Kynard 1997). Although extirpated from some areas due mainly to overharvest, bycatch, pollution, and habitat degradation, shortnose sturgeon still occur in at least 25 rivers systems within their historical range (NMFS 1998). Throughout their current range, shortnose sturgeon occur in riverine, estuarine, and marine habitats; and, as adults, generally move seasonally between freshwater spawning habitat and downstream mesohaline and sometimes coastal marine areas in response to cues such as water temperature, flow, and salinity. Like other species of sturgeon (
The Saint John River begins in northern Maine, United States, travels through New Brunswick, Canada, and empties into the Bay of Fundy within the northeast Gulf of Maine. The river is approximately 673 km long, fed by numerous tributaries, and has a large tidal estuary and a basin area of over 55,000 km
Overall, the variation in habitat characteristics across the range of shortnose sturgeon indicates that there is no single type or typical river system. Despite a suite of existing threats, shortnose sturgeon continue to occupy many river systems across their historical range. The fact that the Saint John River lies at one end of the species' range, and among other attributes, experiences different temperature and flow regimes, does not mean that this particular river is unusual or unique given the variability in habitat conditions observed across the range. Therefore, we conclude that the Saint John River is not an unusual or unique ecological setting when viewed against the range of the taxon as a whole. Furthermore, though not relied up on for our finding, we note that COSEWIC (In Press) recently concluded that shortnose sturgeon from other river systems would probably be able to survive in Canada.
The second consideration under the DPS Policy in determining whether a population may be “significant” to its taxon is whether the “loss of the discrete population segment would result in a significant gap in the range of a taxon” (61 FR 4722, February 7, 1996). Shortnose sturgeon are distributed along the Atlantic coast of North America from the Minas Basin, Nova Scotia to the St. Johns River, Florida, representing a coastal range of roughly 3,700 km. The Saint John River, located at the northern end of the range, represents a small portion of the species' currently occupied geographic range. In addition, although the Saint John River is presumed to contain a relatively large population of shortnose sturgeon, that populaiton is not considered the largest, and it represents one of at least 10 spawning populations (SSRT 2010). Furthermore, relatively recent field data indicate shortnose sturgeon make coastal migrations to a greater extent than previously thought (
Under the DPS Policy, a discrete population segment that represents the “only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range” may be significant to the taxon as whole (61 FR 4722, February 7, 1996). This consideration is not relevant in this particular case, because shortnose sturgeon are present in many river systems throughout their historical range (SSRT 2010).
As stated in the DPS Policy, in assessing the “significance” of a “discrete” population, we consider whether the discrete population segment differs markedly from other populations of the species in its genetic characteristics (61 FR 4722, February 7, 1996). Therefore, we examined the available data to determine whether the Saint John River shortnose sturgeon differ markedly in their genetic characteristics when compared to other populations. In conducting this evaluation under the second criterion of the DPS policy, we looked beyond whether the genetic data allow for discrimination of the Saint John population segment from other populations (a topic of evaluation in connection with the first criterion of “discreteness”), and instead focused on whether the data indicate marked genetic differences that appear to be significant to the taxon as a whole. In this sense, we give independent meaning to the “genetic discontinuity” of the discreteness criterion of the DPS Policy and the “markedly differing genetic characteristics” of the significance criterion.
Genetic analyses indicate fairly moderate to high levels of genetic diversity of shortnose sturgeon in most river systems across the geographic range (Grunwald
As discussed previously, at a regional scale, most of the mtDNA haplotypes observed are shared across multiple, adjacent rivers sampled; however, very little sharing of haplotypes has been documented between the northern and southern portions of the range (Quattro
While the shortnose sturgeon from the Saint John River have a fairly high degree of genetic diversity and shared haplotypes with other rivers, they can be statistically differentiated from other river samples based on haplotype frequencies and nDNA distance metrics (Wirgin
The magnitude of these genetic differences between individual river systems varies across the range of the species and indicates a hierarchical pattern of differentiation. For example, the mtDNA data reveal a deep divergence between rivers in the northern portion of the range from rivers in the southern portion of the range. Of the 29 haplotypes observed by Grunwald
The recent nDNA analyses of King
In conclusion, given the patterns of genetic diversity, shared haplotypes, and relative magnitudes of genetic divergence at the river drainage versus regional scale, we find there is insufficient evidence that the Saint John River population of shortnose sturgeon differs markedly in its genetic characteristics relative to the taxon as a whole so as to meet the test for “significance” on this basis. While the Saint John River population segment can be genetically distinguished from other river populations, available genetic evidence places it into a larger evolutionarily meaningful unit, along with several other river populations sampled. The degree of differentiation among the three larger regional groups is more marked than the differences observed among populations from the Saint John and other nearest rivers, suggesting that the Saint John River
We conclude that the Saint John River population of shortnose sturgeon is “discrete” based on evidence that it is a relatively closed and somewhat geographically isolated population segment. It thus satisfies the first prong of the DPS policy. However, we also find that the Saint John River population segment is not “significant” to the taxon as a whole. It thus fails to satisfy the second prong of the DPS Policy. As such, based on the best available data, we conclude that the Saint John River population of shortnose sturgeon does not constitute a DPS and, thus, does not qualify as a “species” under the ESA. Therefore, we deny the petition to consider this DPS for delisting. Our denial of the petition on this ground does not imply any finding as to how we should proceed if the situation were otherwise,
A complete list of references is available upon request to the Office of Protected Resources (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the 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.
Comments regarding this information collection received by November 25, 2015 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725-17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
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National Agricultural Statistics Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the National Agricultural Statistics Service (NASS) to seek approval to conduct a new information collection to gather data related to the production and marketing of foods directly from farm producers to consumers or retailers. In addition NASS will collect some whole-farm data to be used to classify and group operations for summarizing and publication of results.
Comments on this notice must be received by December 28, 2015 to be assured of consideration.
You may submit comments, identified by docket number 0535-NEW, by any of the following methods:
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R. Renee Picanso, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720-2707. Copies of this information collection and related instructions can be obtained without charge from David Hancock, NASS—OMB Clearance Officer, at (202) 690-2388 or at
As a direct response to this interest in local foods, NASS included a question in the 2012 Census of Agriculture to capture data needed to benchmark the size of the intermediated local foods market. Contingent upon the availability of funding, the Local Foods Survey will be a Census follow-on survey. As a follow-on survey, it will be sampled from respondents to the 2012 Census of Agriculture who reported product sales directly to consumers or to retail outlets that in turn sell directly to consumers. Response to this survey will be voluntary.
NASS also complies with OMB Implementation Guidance, “Implementation Guidance for Title V of the E-Government Act, Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA),”
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U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Mississippi Advisory Committee (Committee) will hold a meeting on Thursday, November 19, 2015, at 2:00 p.m. CST for the purpose of discussing and voting on an advisory memorandum on civil rights concerns relating to potential disparities in the distribution of federal child care subsidies in Mississippi on the basis of race or color. The committee previously gathered testimony on this topic on April 29, 2015, and May 13, 2015.
Members of the public may listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888-505-4369, conference ID: 4796911. Any interested member of the public may call this number and listen to the meeting. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines according to their wireless plan, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.
Member of the public are also invited and welcomed to make statements at the end of the conference call. In addition, members of the public may submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
The meeting will be held on Thursday, November 19, 2015, at 2:00 p.m. CST. Public Call Information: Dial: 888-505-4369, Conference ID: 4796911.
Melissa Wojnaroski, DFO, at 312-353-8311 or
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Oklahoma Advisory Committee (Committee) will hold a meeting on Monday, November 9, 2015, from 1:00-2:30 p.m. CST for the purpose of discussing and findings and recommendations related to its inquiry regarding the civil rights impact of the “school to prison pipeline” in Oklahoma.
Members of the public may listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888-539-3678, conference ID: 6512744. Any interested member of the public may call this number and listen to the meeting. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines according to their wireless plan, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also invited and welcomed to make statements at the end of the conference call. In addition, members of the public may submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Administrative Assistant, Corrine Sanders at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at:
The meeting will be held on Monday, November 9, 2015, from 1:00-2:30 p.m. CST.
Dial: 888-539-3678.
Conference ID: 6512744.
Melissa Wojnaroski, DFO, at 312-353-8311 or
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The data are needed to monitor U.S. trade in services, to analyze the impact on the U.S. and foreign economies, to compile and improve the U.S. economic accounts, to support U.S. commercial policy on trade in services, to conduct trade promotion, and to improve the ability of U.S. businesses to identify and evaluate market opportunities. The data are used in estimating the services component of the U.S. international transactions accounts and national income and product accounts.
The Bureau of Economic Analysis (BEA) is proposing the following additions and modifications to the current BE-125 survey to increase the quality and usefulness of BEA's published statistics on trade in services:
(1) Two new schedules, Schedules D and E, will be added to collect additional information related to intellectual property and merchanting services. Schedule D is to be completed by a U.S. person who engages in intellectual property transactions with foreign persons. Schedule E is to be completed by a U.S. person who engages in merchanting services transactions with foreign persons.
(2) Several services categories that are currently collected as part of “other selected services” will be collected separately. These services include audiovisual services, artistic-related services, health services, heritage and recreational services, and other personal services.
(3) “Maintenance services” will be collected separately from “installation, alteration, and training services.”
BEA estimates the proposed changes will increase the average number of hours per response from 16 hours to 18 hours for those reporting data. The reporting thresholds of the current BE-125 survey will be retained. The effort to keep current reporting thresholds unchanged is intended to minimize respondent burden while considering the needs of data users. Existing language in the instructions and definitions will be reviewed and adjusted as necessary to clarify survey requirements.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On March 2, 2015, the Department of Commerce (Department) published the notice of initiation of an administrative review of the antidumping duty order on wooden bedroom furniture from the People's Republic of China (PRC).
Jeffrey Pedersen or Patrick O'Connor, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, telephone: (202) 482-2769 or (202) 482-0989, respectively.
On January 2, 2015, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on wooden bedroom furniture from the PRC.
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, in whole or in part, if a party that requested the review withdraws its request within 90 days of the date of publication of the notice of initiation of the requested review. All requesting parties withdrew their respective requests for an administrative review of the companies listed in the Appendix within 90 days of the date of publication of
The Department will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries. For the companies for which this review is rescinded, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(l)(i). The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of this notice.
This notice serves as the only reminder to importers whose entries will be liquidated as a result of this rescission notice, of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's assumption that the reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under an APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) is initiating a new shipper review of the antidumping duty order on multilayered wood flooring from the People's Republic of China (“PRC”). The period of review (“POR”) for the new shipper review is December 1, 2013, through November 30, 2014.
Maisha Cryor or Robert Bolling, AD/CVD Operations, Office 4, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-5831 or 202-482-3434, respectively.
The Department published the antidumping duty order on multilayered wood flooring from the PRC on December 8, 2011.
In its submission, Qingdao Barry certified that it is both the producer and exporter of the subject merchandise upon which its respective review request was based.
In addition to the certifications described above, pursuant to 19 CFR 351.214(b)(2)(iv), Qingdao Barry submitted documentation establishing the following: (1) The date on which it first shipped multilayered wood flooring for export to the United States and the date on which the multilayered wood flooring was first entered, or withdrawn from warehouse, for consumption; (2) the volume of its first shipment and a statement that it made no subsequent shipments; and (3) the date of its first sale to an unaffiliated customer in the United States.
The Department conducted U.S. Customs and Border Protection (“CBP”) database queries and confirmed that Qingdao Barry's shipment of subject merchandise had entered the United States for consumption and that liquidation of such entries had been properly suspended for antidumping duties. The Department also confirmed by examining CBP data that Qingdao Barry's entries were made during the POR specified by the Department's regulations.
Pursuant to section 751(a)(2)(B) of the Act and 19 CFR 351.214(b), and after reviewing the information on the record, the Department finds that the request submitted by Qingdao Barry meets the threshold requirements for initiation of a new shipper review for the shipments of multilayered wood flooring from the PRC produced and exported by Qingdao Barry.
It is the Department's usual practice, in cases involving non-market economies, to require that a company seeking to establish eligibility for an antidumping duty rate separate from the country-wide rate provide evidence of
The Department will instruct CBP to allow, until the completion of the review, at the option of the importer, the posting of a bond or security in lieu of a cash deposit for each entry of the subject merchandise from Qingdao Barry, in accordance with section 751(a)(2)(B)(iii) of the Act and 19 CFR 351.214(e). Because Qingdao Barry certified that it produced and exported the subject merchandise, the Department will apply the bonding
Interested parties requiring access to proprietary information in this new shipper review should submit applications for disclosure under administrative protective order in accordance with 19 CFR 351.305 and 19 CFR 351.306.
This initiation and notice are in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214 and 19 CFR 351.221(c)(1)(i).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Groundfish Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Thursday, November 12, 2015 at 9:30 a.m.
The meeting will be held at the Holiday Inn by the Bay, 88 Spring Street, Portland, ME 04101; phone: (207) 775-2311; fax: (207) 772-4017.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The items of discussion on the agenda are: The panel will receive an overview from the Groundfish Plan Development Team (PDT) on draft alternatives in Framework Adjustment 55 (FW 55) specifications, changes to the groundfish monitoring program, other management measures and draft impacts analysis. They also plan to develop recommendations to the Groundfish Committee regarding alternatives in FW 55. The panel will also develop recommendations to the Groundfish Committee for 2016 Council priorities. They will also discuss other business as necessary.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS has received an application from the St. George Reef Lighthouse Preservation Society (Society), for an Incidental Harassment Authorization (Authorization) to take marine mammals, by harassment incidental to conducting aircraft operations, lighthouse renovation, and light maintenance activities on the St. George Reef Light Station on Northwest Seal Rock in the northeast Pacific Ocean. The proposed dates for this action would be late November 2015 through November 2016. Per the Marine Mammal Protection Act, we are requesting comments on our proposal to issue an Authorization to the Society to incidentally take, by Level B harassment only, marine mammals during the specified activity.
NMFS must receive comments and information on or before November 25, 2015.
Address comments on the application to Jolie Harrison, Division Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is
To obtain an electronic copy of the application containing a list of the references used in this document, write to the previously mentioned address, telephone the contact listed here (see
The Environmental Assessment (EA) specific to conducting aircraft operations, restoration, and maintenance work on the light station is also available at the same internet
Jeannine Cody, NMFS, Office of Protected Resources, NMFS (301) 427-8401.
Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
An Authorization shall be granted for the incidental taking of small numbers of marine mammals if NMFS finds that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The Authorization must also set forth the permissible methods of taking; other means of effecting the least practicable adverse impact on the species or stock and its habitat; and requirements pertaining to the monitoring and reporting of such taking. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
On October 1, 2015, from the Society requesting that we issue an Authorization for the take of marine mammals, incidental to conducting restoration activities on the St. George Reef Light Station (Station) located on Northwest Seal Rock offshore of Crescent City, California in the northeast Pacific Ocean. NMFS determined the application complete and adequate on October 7, 2015.
The Society proposes to conduct aircraft operations, lighthouse renovation, and periodic maintenance on the Station's optical light system on a monthly basis. The proposed activity would occur on a monthly basis over one weekend, November 2015 through April 2016 and again for one weekend in November 2016. The following specific aspects of the proposed activities would likely to result in the take of marine mammals: (1) Helicopter landings/takeoffs; (2) noise generated during restoration activities (
To date, NMFS has issued four Authorizations to the Society for the conduct of the same activities from 2010 to 2015 (75 FR 4774, January 29, 2010; 76 FR 10564, February 25, 2011; 77 FR 8811, February 15, 2012; and 79 FR 6179, February 3, 2014). This is the Society's fifth request for an annual Authorization as their last Authorization expired on April 10, 2015.
The Station, listed in the National Park Service's National Register of Historic Places, is located on Northwest Seal Rock offshore of Crescent City, California in the northeast Pacific Ocean. The Station, built in 1892, rises 45.7 meters (m) (150 feet (ft)) above sea level. The structure consists of hundreds of granite blocks topped with a cast iron lantern room and covers much of the surface of the islet. The purpose of the project is to restore the lighthouse and to conduct annual and emergency maintenance on the Station's optical light system.
The Society proposes to conduct the activities (aircraft operations, lighthouse restoration, and maintenance activities) at a maximum frequency of one session per month. The proposed duration for each session would last no more than three days (
The Station is located on a small, rocky islet (41°50′24″ N., 124°22′06″ W.) approximately nine kilometers (km) (6.0 miles (mi)) in the northeast Pacific Ocean, offshore of Crescent City, California (Latitude: 41°46′48″ N.; Longitude: 124°14′11″ W.). NWSR is approximately 91.4 m (300 ft) in diameter that peaks at 5.18 m (17 ft) above mean sea level.
Because Northwest Seal Rock has no safe landing area for boats, the proposed restoration activities would require the Society to transport personnel and equipment from the California mainland to Northwest Seal Rock by a small helicopter. Helicopter landings take place on top of the engine room (caisson) which is approximately 15 m (48 ft) above the surface of the rocks on Northwest Seal Rock. The Society plans to charter a Raven R44 helicopter, owned and operated by Air Shasta Rotor and Wing, LLC. The Raven R44, which seats three passengers and one pilot, is a compact-sized (1134 kilograms (kg), 2500 pounds (lbs)) helicopter with two-bladed main and tail rotors. Both sets of rotors are fitted with noise-attenuating blade tip caps that would decrease flyover noise.
The Society proposes to transport no more than 15 work crew members and equipment to Northwest Seal Rock for each session and estimates that each session would require no more than 36 helicopter landings/takeoffs per month. During landing, the helicopter would land on the caisson to allow the work crew members to disembark and retrieve their equipment located in a basket attached to the underside of the helicopter. The helicopter would then return to the mainland to pick up additional personnel and equipment.
Proposed schedule: The Society would conduct a maximum of 16 flights (eight arrivals and eight departures) for the first day. The first flight would depart from Crescent City Airport at approximately 9 a.m. for a 6-minute flight to Northwest Seal Rock. The helicopter would land and takeoff immediately after offloading personnel and equipment every 20 minutes (min). The total duration of the first day's aerial operations could last for approximately 3 hours (hrs) and 26 min and would end at approximately 12:34 p.m. Crew members would remain overnight at the Station and would not return to the mainland on the first day.
For the second day, the Society would conduct a maximum of 10 flights (five arrivals and five departures) to transport additional materials on and off the islet. The first flight would depart from Crescent City Airport at 9 a.m. for a 6-minute flight to Northwest Seal Rock. The total duration of the second day's aerial operations could last up to three hours.
For the final day of operations, the Society could conduct a maximum of eight helicopter flights (four arrivals and four departures) to transport the remaining crew members and equipment/material back to the Crescent City Airport. The total duration of the third day's helicopter operations in support of restoration could last up to 2 hrs and 14 min.
Restoration and maintenance activities would involve the removal of peeling paint and plaster, restoration of interior plaster and paint, refurbishing structural and decorative metal, reworking original metal support beams throughout the lantern room and elsewhere, replacing glass as necessary, upgrading the present electrical system; and annual light beacon maintenance.
If the beacon light fails, the Society proposes to send a crew of two to three people to the Station by helicopter to repair the beacon light. For each emergency repair event, the Society proposes to conduct a maximum of four flights (two arrivals and two departures) to transport equipment and supplies. The helicopter may remain on site or transit back to shore and make a second landing to pick up the repair personnel.
In the case of an emergency repair between May 1, 2016, and October 31, 2016, the Society would consult with the NMFS' Western Regional Office (WRO) biologists to best determine the timing of the trips to the lighthouse, on a case-by-case basis, based upon the existing environmental conditions and the abundance and distribution of any marine mammals present on NWSR. The regional biologists would have real-time knowledge regarding the animal use and abundance of the NWSR at the time of the repair request and would make a decision regarding when the Society could conduct trips to the lighthouse during the emergency repair time window that would have the least practicable adverse impact to marine mammals. The WRO biologists would also ensure that the Society's request for incidental take during emergency repairs would not exceed the number of incidental take authorized in the proposed Authorization.
NMFS expects that acoustic stimuli resulting from the proposed helicopter operations; noise from maintenance and restoration activities; and human presence have the potential to harass marine mammals, incidental to the conduct of the proposed activities.
This section includes a brief explanation of the sound measurements frequently used in the discussions of acoustic effects in this notice. Sound pressure is the sound force per unit area, and is usually measured in micropascals (μPa), where 1 pascal (Pa) is the pressure resulting from a force of one newton exerted over an area of one square meter. Sound pressure level (SPL) is the ratio of a measured sound pressure and a reference level. The commonly used reference pressure is 1 μPa for under water, and the units for SPLs are dB re: 1 μPa. The commonly used reference pressure is 20 μPa for in air, and the units for SPLs are dB re: 20 μPa.
SPL (in decibels (dB)) = 20 log (pressure/reference pressure).
SPL is an instantaneous measurement expressed as the peak, the peak-peak (p-p), or the root mean square (rms). Root mean square is the square root of the arithmetic average of the squared instantaneous pressure values. All references to SPL in this document refer to the root mean square unless otherwise noted. SPL does not take into account the duration of a sound.
Noise testing performed on the R44 Raven Helicopter, as required for Federal Aviation Administration approval, required an overflight at 150 m (492 ft) above ground level, 109 knots and a maximum gross weight of 1,134 kg (2,500 lbs). The noise levels measured on the ground at this distance and speed were 81.9 decibels (dB) re: 20 μPa (A-weighted) for the model R44 Raven I, or 81.0 dB re: 20 μPa (A-weighted) for the model R44 Raven II (NMFS, 2007).
Based on this information, we expect that the received sound levels at the landing area on the Station's caisson would increase above 81-81.9 dB re: 20 μPa (A-weighted).
Any noise associated with these activities is likely to be from light construction (
Table 1 provides the following information: All marine mammal species with possible or confirmed occurrence in the proposed activity area; information on those species' regulatory status under the MMPA and the Endangered Species Act of 1973 (16 U.S.C. 1531
Steller sea lions consist of two distinct population segments: The western and eastern distinct population segments (DPS) divided at 144° West longitude (Cape Suckling, Alaska). The western segment of Steller sea lions inhabit central and western Gulf of Alaska, Aleutian Islands, as well as coastal waters and breed in Asia (
Steller sea lions range along the North Pacific Rim from northern Japan to California (Loughlin
The eastern distinct population segment of Steller sea lions breeds on rookeries located in southeast Alaska, British Columbia, Oregon, and California. There are no rookeries located in Washington state. Steller sea lions give birth in May through July and breeding commences a couple of weeks after birth. Pups are weaned during the winter and spring of the following year.
Despite the wide-ranging movements of juveniles and adult males in particular, exchange between rookeries by breeding adult females and males (other than between adjoining rookeries) appears low, although males have a higher tendency to disperse than females (NMFS, 1995; Trujillo
Steller sea lion numbers at Northwest Seal Rock ranged from 20 to 355 animals (CCR, 2001). Counts of Steller sea lions during the spring (April-May), summer (June-August), and fall (September-October), averaged 68, 110, and 56, respectively (CCR, 2001). A multi-year survey at NWSR between 2000 and 2004 showed Steller sea lion numbers ranging from 175 to 354 in July (M. Lowry, NMFS/SWFSC, unpubl. data). The Society presumes that winter use of NWSR by Steller sea lion to be minimal, due to inundation of the natural portion of the island by large swells.
For the 2010 season, the Society reported that no Steller sea lions were present in the vicinity of Northwest Seal Rock during restoration activities (SGRLPS, 2010). Based on the monitoring report for the 2011 season, the maximum numbers of Steller sea lions present during the April and November 2011, work sessions was 2 and 150 animals, respectively (SGRLPS, 2012). During the 2012 season, the Society did not observe any Steller sea lions present on Northwest Seal Rock during restoration activities. The Society did not conduct any operations for the 2013-2014 and 2014-2015 seasons.
The estimated population of the U.S. stock of California sea lion is approximately 296,750 animals and the current maximum population growth rate is 12 percent (Carretta
California sea lion breeding areas are on islands located in southern California, in western Baja California, Mexico, and the Gulf of California. During the breeding season, most California sea lions inhabit southern California and Mexico. Rookery sites in southern California are limited to the San Miguel Islands and the southerly Channel Islands of San Nicolas, Santa Barbara, and San Clemente (Carretta
Adult and juvenile males will migrate as far north as British Columbia, Canada while females and pups remain in southern California waters in the non-breeding season. In warm water (El Niño) years, some females range as far north as Washington and Oregon, presumably following prey.
Crescent Coastal Research (CCR) conducted a three-year (1998-2000) survey of the wildlife species on NWSR for the Society. They reported that counts of California sea lions on NWSR varied greatly (from six to 541) during the observation period from April 1997 through July 2000. CCR reported that counts for California sea lions during the spring (April-May), summer (June-August), and fall (September-October), averaged 60, 154, and 235, respectively (CCR, 2001).
The most current counts for the month of July by NMFS (2000 through 2004) have been relatively low as the total number of California sea lions recorded in 2000 and 2003 was 3 and 11, respectively (M. Lowry, NMFS, SWFSC, unpublished data). Based on the monitoring report for the 2011 season, the maximum numbers of California sea lions present during the April and November, 2011 work sessions was 2 and 90 animals, respectively (SGRLPS, 2012). There were no California sea lions present
Northern fur seals occur from southern California north to the Bering Sea and west to the Sea of Okhotsk and Honshu Island of Japan. NMFS recognizes two separate stocks of northern fur seals within U.S. waters: An Eastern Pacific stock distributed among sites in Alaska, British Columbia; and a San Miguel Island stock distributed along the west coast of the continental U.S. The estimated population of the San Miguel Island stock is 9,968 animals with a maximum population growth rate of 12 percent (Carretta
Northern fur seals may temporarily haul out on land at other sites in Alaska, British Columbia, and on islets along the west coast of the continental United States, but generally this occurs outside of the breeding season (Fiscus, 1983).
Northern fur seals breed in Alaska and migrate along the west coast during fall and winter. Due to their pelagic habitat, they are rarely seen from shore in the continental U.S., but individuals occasionally come ashore on islands well offshore (
CCR observed one male northern fur seal on Northwest Seal Rock in October, 1998 (CCR, 2001). It is possible that a few animals may use the island more often that indicated by the CCR surveys, if they were mistaken for other otariid species(
For the 2010, 2011, and 2012 work seasons, the Society has not observed any northern fur seals present on Northwest Seal Rock during restoration activities (SGRLPS, 2010; 2011; 2012).
The estimated population of the California stock of Pacific harbor seals is approximately 30,196 animals (Carretta
The animals inhabit near-shore coastal and estuarine areas from Baja California, Mexico, to the Pribilof Islands in Alaska. Pacific harbor seals consist of two subspecies:
In California, over 500 harbor seal haulout sites are widely distributed along the mainland and offshore islands, and include rocky shores, beaches and intertidal sandbars (Lowry
CCR noted that harbor seal use of Northwest Seal Rock was minimal, with only one sighting of a group of six animals, during 20 observation surveys. They hypothesized that harbor seals may avoid the islet because of its distance from shore, relatively steep topography, and full exposure to rough and frequently turbulent sea swells. For the 2010 and 2011 seasons, the Society did not observe any Pacific harbor seals present on Northwest Seal Rock during restoration activities (SGRLPS, 2010; 2011). During the 2012 season, the Society reported sighting a total of two harbor seals present on Northwest Seal Rock (SGRLPS, 2012).
California (southern) sea otters (
This section includes a summary and discussion of the ways that the types of stressors associated with the specified activity (
Acoustic and visual stimuli generated by: (1) Helicopter landings/takeoffs; (2) noise generated during restoration activities (
Pinnipeds have the potential to be disturbed by airborne and underwater noise generated by the engine of the aircraft (Born, Riget, Dietz, & Andriashek, 1999; Richardson, Greene, Malme, & Thomson, 1995). Data on underwater TTS-onset in pinnipeds exposed to pulses are limited to a single study which exposed two California sea lions to single underwater pulses from an arc-gap transducer and found no measurable TTS following exposures up to 183 dB re: 1 μPa (peak-to-peak) (Finneran, Dear, Carder, & Ridgway, 2003).
Researchers have demonstrated temporary threshold shift (TTS) in certain captive odontocetes and pinnipeds exposed to strong sounds (reviewed in Southall
There is a dearth of information on acoustic effects of helicopter overflights on pinniped hearing and communication (Richardson,
In 2008, NMFS issued an Authorization to the USFWS for the take of small numbers of Steller sea lions and Pacific harbor seals, incidental to rodent eradication activities on an islet offshore of Rat Island, AK conducted by helicopter. The 15-minute aerial treatment consisted of the helicopter slowly approaching the islet at an elevation of over 1,000 feet (304.8 m); gradually decreasing altitude in slow circles; and applying the rodenticide in a single pass and returning to Rat Island. The gradual and deliberate approach to the islet resulted in the sea lions present initially becoming aware of the helicopter and calmly moving into the water. Further, the USFWS reported that all responses fell well within the range of Level B harassment (
As a general statement from the available information, pinnipeds exposed to intense (approximately 110 to 120 dB re: 20 μPa) non-pulse sounds often leave haulout areas and seek refuge temporarily (minutes to a few hours) in the water (Southall
It is likely that the initial helicopter approach to Northwest Seal Rock would cause a subset, or all of the marine mammals hauled out to depart the rock and flush into the water. The physical presence of aircraft could also lead to non-auditory effects on marine mammals involving visual or other cues. Airborne sound from a low-flying helicopter or airplane may be heard by marine mammals while at the surface or underwater. In general, helicopters tend to be noisier than fixed wing aircraft of similar size and underwater sounds from aircraft are strongest just below the surface and directly under the aircraft. Noise from aircraft would not be expected to cause direct physical effects but have the potential to affect behavior. The primary factor that may influence abrupt movements of animals is engine noise, specifically changes in engine noise. Responses by mammals could include hasty dives or turns, change in course, or flushing and stampeding from a haul out site. There are few well documented studies of the impacts of aircraft overflight over pinniped haul out sites or rookeries, and many of those that exist, are specific to military activities (Efroymson
Several factors complicate the analysis of long- and short-term effects for aircraft overflights. Information on behavioral effects of overflights by military aircraft (or component stressors) on most wildlife species is sparse. Moreover, models that relate behavioral changes to abundance or reproduction, and those that relate behavioral or hearing effects thresholds from one population to another are generally not available. In addition, the aggregation of sound frequencies, durations, and the view of the aircraft into a single exposure metric is not always the best predictor of effects and it may also be difficult to calculate. Overall, there has been no indication that single or occasional aircraft flying above pinnipeds in water cause long term displacement of these animals (Richardson
If pinnipeds are present on Northwest Seal Rock, it is likely that a helicopter landing at the Station would cause some number of the pinnipeds on Northwest Seal Rock to flush; however, when present, they appear to show rapid habituation to helicopter landing and departure (Crescent Coastal Research, 2001; Guy Towers, SGRLPS, pers. com.). According to the CCR Report (2001), while up to 40 percent of the California and Steller sea lions present on Northwest Seal Rock have been observed to enter the water on the first of a series of helicopter landings, as few as zero percent have flushed on subsequent landings on the same date. In fact, the Society reported that during the November 2011 work session, Steller sea lions and California sea lions exhibited minimal ingress and egress from Northwest Seal Rock during helicopter approaches and departures (SGRLPS, 2011).
The appearance of Society personnel may have the potential to cause Level B harassment of marine mammals hauled out on the small island in the proposed action area. Disturbance includes a variety of effects, including subtle to conspicuous changes in behavior, movement, and displacement. Disturbance may result in reactions ranging from an animal simply becoming alert to the presence of the Society's restoration personnel (
Reactions to human presence, if any, depend on species, state of maturity, experience, current activity, reproductive state, time of day, and many other factors (Richardson
Disturbances resulting from human activity can impact short- and long-term pinniped haul out behavior (Renouf
In cases where vessels actively approached marine mammals (
In 1997, Henry and Hammil (2001) conducted a study to measure the impacts of small boats (
In 2004, Johnson and Acevedo-Gutierrez (2007) evaluated the efficacy of buffer zones for watercraft around harbor seal haulout sites on Yellow Island, Washington. The authors estimated the minimum distance between the vessels and the haul-out sites; categorized the vessel types; and evaluated seal responses to the disturbances. During the course of the seven-weekend study, the authors recorded 14 human-related disturbances which were associated with stopped powerboats and kayaks. During these events, hauled out seals became noticeably active and moved into the water. The flushing occurred when stopped kayaks and powerboats were at distances as far as 453 and 1,217 ft (138 and 371 m) respectively. The authors note that the seals were unaffected by passing powerboats, even those approaching as close as 128 ft (39 m), possibly indicating that the animals had become tolerant of the brief presence of the vessels and ignored them. The authors reported that on average, the seals quickly recovered from the disturbances and returned to the haulout site in less than or equal to 60 minutes. Seal numbers did not return to pre-disturbance levels within 180 minutes of the disturbance less than one quarter of the time observed. The study concluded that the return of seal numbers to pre-disturbance levels and the relatively regular seasonal cycle in abundance throughout the area counter the idea that disturbances from powerboats may result in site abandonment (Johnson and Acevedo-Gutierrez, 2007). As a general statement from the available information, pinnipeds exposed to intense (approximately 110 to 120 decibels re: 20 μPa) non-pulsed sounds often leave haulout areas and seek refuge temporarily (minutes to a few hours) in the water (Southall
There are other ways in which disturbance, as described previously, could result in more than Level B harassment of marine mammals. They are most likely to be consequences of stampeding, a potentially dangerous occurrence in which large numbers of animals succumb to mass panic and rush away from a stimulus. These situations are: (1) Falling when entering the water at high-relief locations; (2) extended separation of mothers and pups; and (3) crushing of pups by large males during a stampede. However, NMFS does not expect any of these scenarios to occur at Northwest Seal Rock. There is the risk of injury if animals stampede towards shorelines with precipitous relief (
The only habitat modification associated with the proposed activity is the restoration of a light station which would occur on the upper levels of Northwest Seal Rock which are not used by marine mammals. Thus, NMFS does not expect that the proposed activity would have any effects on marine mammal habitat and NMFS expects that there will be no long- or short-term physical impacts to pinniped habitat on Northwest Seal Rock.
The Society would remove all waste, discarded materials and equipment from the island after each visit. The proposed activities will not result in any permanent impact on habitats used by marine mammals, including prey species and foraging habitat. The main impact associated with the proposed activity will be temporarily elevated noise levels and the associated direct effects on marine mammals (
NMFS does not anticipate that the proposed restoration activities would result in any permanent effects on the habitats used by the marine mammals in the proposed area, including the food sources they use (
In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant).
Since the most severe impacts (stampede) precede rapid and direct helicopter approaches, the Society's initial approach to the Station must be offshore from the island at a relatively high altitude (
NMFS has carefully evaluated the Society's proposed mitigation measures in the context of ensuring that we prescribe the means of affecting the least practicable impact on the affected marine mammal species and stocks and their habitat. The evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:
1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to vessel or visual presence that NMFS expects to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
3. A reduction in the number of times (total number or number at biologically important time or location) individuals exposed to vessel or visual presence that NMFS expects to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to vessel or visual presence that NMFS expects to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).
5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on the evaluation of the Society's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an incidental take authorization for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for Authorizations 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 NMFS expects to be present in the proposed action area.
The Society submitted a marine mammal monitoring plan in section 13 of their Authorization application. NMFS or the Society may modify or supplement the plan based on comments or new information received from the public during the public comment period.
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
1. An increase in our understanding of the likely occurrence of marine mammal species in the vicinity of the action, (
2. An increase in our understanding of the nature, scope, or context of the likely exposure of marine mammal species to any of the potential stressor(s) associated with the action (
3. An increase in our understanding of how individual marine mammals respond (behaviorally or physiologically) to the specific stressors associated with the action (in specific contexts, where possible,
4. An increase in our understanding of how anticipated individual responses, to individual stressors or anticipated combinations of stressors, may impact either: The long-term fitness and survival of an individual; or the population, species, or stock (
5. An increase in our understanding of how the activity affects marine mammal habitat, such as through effects on prey sources or acoustic habitat (
6. An increase in understanding of the impacts of the activity on marine mammals in combination with the impacts of other anthropogenic activities or natural factors occurring in the region.
7. An increase in our understanding of the effectiveness of mitigation and monitoring measures.
8. An increase in the probability of detecting marine mammals (through improved technology or methodology), both specifically within the safety zone (thus allowing for more effective implementation of the mitigation) and in general, to better achieve the above goals.
As part of its Authorization application, the Society proposes to sponsor marine mammal monitoring, in order to implement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the proposed Authorization. These include:
At least once during the period between November 27, 2015 through November 26, 2016, a qualified biologist shall be present during all three workdays at the Station. The qualified biologist hired will be subject to approval by us and they shall document use of the island by the pinnipeds, frequency, (
Aerial photographic surveys may provide the most accurate means of documenting species composition, age and sex class of pinnipeds using the project site during human activity periods. The Society should complete aerial photo coverage of the island from the same helicopter used to transport the Society's personnel to the island during restoration trips. The Society would take photographs of all marine mammals hauled out on the island at an altitude greater than 300 m (984 ft) by a skilled photographer, prior to the first landing on each visit included in the monitoring program. Photographic documentation of marine mammals present at the end of each three-day work session shall also be made for a before and after comparison. These photographs will be forwarded to a biologist capable of discerning marine mammal species. Data shall be provided to us in the form of a report with a data table, any other significant observations related to marine mammals, and a report of restoration activities (see Reporting). The original photographs can be made available to us or other marine mammal experts for inspection and further analysis.
Proposed monitoring requirements in relation to the Society's proposed activities would include species counts, numbers of observed disturbances, and descriptions of the disturbance behaviors during the restoration activities, including location, date, and time of the event. In addition, the Society would record observations regarding the number and species of any marine mammals either observed in the water or hauled out.
The Society can add to the knowledge of pinnipeds in the proposed action area by noting observations of: (1) Unusual behaviors, numbers, or distributions of pinnipeds, such that any potential follow-up research can be conducted by the appropriate personnel; (2) tag-bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and (3) rare or unusual species of marine mammals for agency follow-up.
If at any time injury, serious injury, or mortality of the species for which take is authorized should occur, or if take of any kind of any other marine mammal occurs, and such action may be a result of the Society's activities, the Society would suspend survey activities and contact NMFS immediately to determine how best to proceed to ensure that another injury or death does not occur and to ensure that the applicant remains in compliance with the MMPA.
The Society complied with the mitigation and monitoring required under the previous authorizations (2010-2013). They did not conduct any operations for the 2013 season. However, in compliance with the 2012 Authorization, the Society submitted a final report on the activities at the Station, covering the period of February 15, 2012 through April 30, 2012. During the effective dates of the 2012 IHA, the Society conducted one work session in March, 2012. The Society's aircraft operations and restoration activities on NWSR did not exceed the activity levels analyzed under the 2012 authorization. During the March 2012 work session, the Society observed two harbor seals hauled out on Northwest Seal Rock. Both animals (a juvenile and an adult) departed the rock, entered the water, and did not return to the Station during the duration of the activities.
The Society would submit a draft report to NMFS' Office of Protected Resources no later than 90 days after the expiration of the proposed Authorization, if issued. The report will include a summary of the information gathered pursuant to the monitoring requirements set forth in the proposed Authorization. The Society will submit a final report to the NMFS Director, Office of Protected Resources within 30 days after receiving comments from NMFS on the draft report. If the Society receives no comments from NMFS on the report, NMFS will consider the draft report to be the final report.
The report will describe the operations conducted and sightings of marine mammals near the proposed project. The report will provide full documentation of methods, results, and interpretation pertaining to all monitoring. The report will provide:
1. A summary and table of the dates, times, and weather during all research activities.
2. Species, number, location, and behavior of any marine mammals observed throughout all monitoring activities.
3. An estimate of the number (by species) of marine mammals exposed to human presence associated with the Society's activities.
4. A description of the implementation and effectiveness of the monitoring and mitigation measures of the Authorization and full documentation of methods, results, and interpretation pertaining to all monitoring.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the authorization, such as an injury (Level A harassment), serious injury, or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Description and location of the incident (including water depth, if applicable);
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
The Society shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. We will work with the Society to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Society may not resume their activities until notified by us via letter, email, or telephone.
In the event that the Society discovers an injured or dead marine mammal, and the marine mammal observer determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that the Society discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (
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].
All anticipated takes would be by Level B harassment, involving temporary changes in behavior. NMFS expects that the proposed mitigation and monitoring measures would minimize the possibility of injurious or lethal takes. NMFS considers the potential for take by injury, serious injury, or mortality as remote. NMFS expects that the presence of Society personnel could disturb of animals hauled out on Northwest Seal Rock and that the animals may alter their behavior or attempt to move away from the Society's personnel.
As discussed earlier, NMFS considers an animal to have been harassed if it moved greater than 1 m (3.3 ft) in response to the Society's presence or if the animal was already moving and changed direction and/or speed, or if the animal flushed into the water. NMFS does not consider animals that became alert without such movements as harassed.
Based on the Society's previous monitoring reports, NMFS estimates that approximately 960 California sea lions (calculated by multiplying the maximum number California sea lions present on NWSR (160) by 6 months of the restoration and maintenance activities), 172 Steller sea lions (NMFS' estimate of the maximum number of Steller sea lions that could be present on NWSR with a 95-percent confidence interval), 36 Pacific harbor seals (calculated by multiplying the maximum number of harbor seals present on NWSR (6) by 6 months), and 6 northern fur seals (calculated by multiplying the maximum number of northern fur seals present on NWSR (1) by 6 months) could be potentially affected by Level B behavioral harassment over the course of the Authorization. NMFS bases these estimates of the numbers of marine mammals that might be affected on consideration of the number of marine mammals that could be disturbed appreciably by approximately 51 hours of aircraft operations during the course of the activity. These incidental harassment take numbers represent approximately 0.32 percent of the U.S. stock of California sea lion, 0.42 percent of the eastern U.S. stock of Steller sea lion, 0.11 percent of the California stock of Pacific harbor seals, and 0.05 percent of the San Miguel Island stock of northern fur seal. However, actual take may be slightly less if animals decide to haul out at a different location for the day or if animals are foraging at the time of the survey activities.
Because of the required mitigation measures and the likelihood that some pinnipeds will avoid the area, NMFS does not expect any injury or mortality to pinnipeds to occur and NMFS has not authorized take by Level A harassment for this proposed activity.
The Society would share observations and counts of marine mammals and all observed disturbances to the appropriate state and federal agencies at the conclusion of the survey.
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). The lack of likely adverse effects on annual rates of recruitment or survival (
Although the Society's survey activities may disturb a small number of marine mammals hauled out on Northwest Seal Rock, NMFS expects those impacts to occur to a small, localized group of animals for a limited duration (
The Society's activities would occur during the least sensitive time (
Moreover, the Society's mitigation measures regarding helicopter approaches and restoration site ingress and egress would minimize the potential for stampedes and large-scale movements. Thus, the potential for large-scale movements and stampede leading to injury, serious injury, or mortality is low.
Any noise attributed to the Society's proposed helicopter operations on NWSR would be short-term (approximately 5 min per trip). We would expect the ambient noise levels to return to a baseline state when helicopter operations have ceased for the day. As the helicopter landings take place 15 m (48 ft) above the surface of the rocks on NWSR, NMFS presumes that the received sound levels would increase above 81-81.9 dB re: 20 μPa (A-weighted) at the landing pad. However, we do not expect that the increased received levels of sound from the helicopter would cause TTS or PTS because the pinnipeds would flush before the helicopter approached NWSR; thus increasing the distance between the pinnipeds and the received sound levels on NWSR during the proposed action.
If pinnipeds are present on Northwest Seal Rock, Level B behavioral harassment of pinnipeds may occur during helicopter landing and takeoff from NWSR due to the pinnipeds temporarily moving from the rocks and lower structure of the Station into the sea due to the noise and appearance of helicopter during approaches and departures. It is expected that all or a portion of the marine mammals hauled out on the island will depart the rock and slowly move into the water upon initial helicopter approaches. The movement to the water would be gradual due to the required controlled helicopter approaches (see “Proposed Mitigation” for more details), the small size of the aircraft, the use of noise-attenuating blade tip caps on the rotors, and behavioral habituation on the part of the animals as helicopter trips continue throughout the day. During the sessions of helicopter activity, if present on NWSR, some animals may be temporarily displaced from the island and either raft in the water or relocate to other haul-outs.
Sea lions have shown habituation to helicopter flights within a day at the project site and most animals are expected to return soon after helicopter activities cease for that day. By clustering helicopter arrival/departures within a short time period, we expect animals present to show less response to subsequent landings. NMFS anticipates no impact on the population size or breeding stock of Steller sea lions, California sea lions, Pacific harbor seals, or northern fur seals.
In summary, NMFS anticipates that impacts to hauled-out pinnipeds during the Society's proposed helicopter operations and restoration/maintenance activities would be behavioral harassment of limited duration (
As mentioned previously, NMFS estimates that the Society's proposed activities could potentially affect, by Level B harassment only, four species of marine mammal under our jurisdiction. For each species, these estimates are small numbers (each, less than or equal to one percent) relative to the population size. These incidental harassment take numbers represent approximately 0.32 percent of the U.S. stock of California sea lion, 0.42 percent of the eastern U.S. stock of Steller sea lion, 0.11 percent of the California stock of Pacific harbor seals, and 0.05 percent of the San Miguel Island stock of northern fur seal.
Based on the analysis contained in this notice of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that the Society's proposed activities would take small numbers of marine mammals relative to the populations of 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.
NMFS does not expect that the Society's proposed helicopter operations and restoration/maintenance activities would affect any species listed under the ESA. Therefore, NMFS has determined that a section 7 consultation under the ESA is not required.
To meet our NEPA requirements for the issuance of an Authorization to the Society, NMFS has prepared an Environmental Assessment (EA) in 2010 that was specific to conducting aircraft operations and restoration and maintenance work on the St. George Reef Light Station. The EA, titled “Issuance of an Incidental Harassment Authorization to Take Marine Mammals by Harassment Incidental to Conducting Aircraft Operations, Lighthouse Restoration and Maintenance Activities on St. George Reef Lighthouse Station in Del Norte County, California,” evaluated the impacts on the human environment of our authorization of incidental Level B harassment resulting from the specified activity in the specified geographic region. At that time, NMFS concluded that issuance of an annual Authorization would not significantly affect the quality of the human environment and issued a Finding of No Significant Impact (FONSI) for the 2010 EA regarding the Society's activities. In conjunction with the Society's 2015 application, NMFS has again reviewed the 2010 EA and determined that there are no new direct, indirect or cumulative impacts to the human and natural environment associated with the IHA requiring evaluation in a supplemental EA and NMFS, therefore, intends to preliminarily reaffirm the 2010 FONSI. An electronic copy of the EA and the FONSI for this activity is available upon request (see
As a result of these preliminary determinations, NMFS proposes issuing an Authorization to the Society for conducting helicopter operations and restoration activities on the St. George Light Station in the northeast Pacific Ocean, November 27, 2015, through November 26 2016, provided they incorporate the previously mentioned mitigation, monitoring, and reporting requirements.
This section contains the draft text for the proposed Authorization. NMFS proposes to include this language in the Authorization if issued.
The St. George Reef Lighthouse Preservation Society (Society), P.O. Box 577, Crescent City, CA 95531, is hereby authorized under section 101(a)(5)(D) of the Marine Mammal Protection Act (16 U.S.C. 1371(a)(5)(D)) and 50 CFR 216.107, to harass marine mammals incidental to conducting helicopter operations and restoration and maintenance work on the St. George Reef Light Station (Station) on Northwest Seal Rock in the northeast Pacific Ocean.
1. This Incidental Harassment Authorization (IHA) is valid from November 27, 2015, through November 26, 2016. The Society may not conduct operations from May 1, 2016 through October 31, 2016.
2. This IHA is valid only for activities associated with helicopter operations and restoration and maintenance activities (See items 2(a)-(d)) on the Station on Northwest Seal Rock (41°50′24″ N., 124°22′06″ W.) in the northeast Pacific Ocean.
a. The use of a small, compact, 4-person helicopter with two-bladed main and tail rotors fitted with noise-attenuating blade tip caps to transit to and from Northwest Seal Rock;
b. Restoration activities (
c. Maintenance activities (
d. Emergency repair events (
a. A copy of this IHA must be in the possession of the Society, its designees, and work crew personnel operating under the authority of this IHA.
b. The species authorized for taking are the California sea lion (
c. The taking, by Level B harassment only, is limited to the species listed in condition 3(b). Authorized take: California sea lion (960); Steller sea lion (172); Pacific harbor seal (36); and northern fur seal (6).
d. The taking by Level A harassment, injury or death of any of the species listed in item 3(b) of the Authorization or the taking by harassment, injury or death of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.
e. In the case of an emergency repair event (
a. The Western Region NMFS marine mammal biologist will make a decision regarding when the Society can schedule helicopter trips to the Northwest Seal Rock during the emergency repair time window and will ensure that such operations will have the least practicable adverse impact to marine mammals.
b. The ARA, Western Region, NMFS will also ensure that the Society's request for incidental take during an emergency repair event would not exceed the number of incidental take authorized in this IHA.
The holder of this Authorization is required to cooperate with the NMFS and any other Federal, state, or local agency authorized to monitor the impacts of the activity on marine mammals.
In order to ensure the least practicable impact on the species listed in condition 3(b), the holder of this Authorization is required to:
a. Conduct restoration and maintenance activities at the Station at a maximum of one session per month between November 27, 2015, through November 26, 2016. Each restoration session will be no more than three days in duration. Maintenance of the light beacon will occur only in conjunction with the monthly restoration activities.
b. Ensure that helicopter approach patterns to the Northwest Seal Rock will be such that the timing techniques are least disturbing to marine mammals. To the extent possible, the helicopter should approach Northwest Seal Rock when the tide is too high for the marine mammals to haul-out on Northwest Seal Rock.
c. Avoid rapid and direct approaches by the helicopter to the station by approaching Northwest Seal Rock at a relatively high altitude (
d. Provide instructions to the Society's members, the restoration crew, and if applicable, to tourists, on appropriate conduct when in the vicinity of hauled-out marine mammals. The Society's members, the restoration crew, and if applicable, tourists, will avoid making unnecessary noise while on Northwest Seal Rock and must not view pinnipeds around the base of the Station.
e. Ensure that the door to the Station's lower platform shall remain closed and barricaded at all times.
The holder of this Authorization is required to:
a. Have a NMFS-approved biologist present during all three workdays at the Station at least once during the period of November 27, 2015, through November 26, 2016. This requirement may be modified depending on the results of the monthly monitoring reports. The biologist shall document use of the island by the marine mammals (
b. Record the date, time, and location (or closest point of ingress) of each visit to the Northwest Seal Rock.
c. Collect the following information for each visit:
i. Information on the numbers (by species) of marine mammals observed during the activities;
ii. The estimated number of marine mammals (by species) that may have been harassed during the activities;
iii. Any behavioral responses or modifications of behaviors that may be attributed to the specific activities (
iv. Information on the weather, including the tidal state and horizontal visibility.
d. Employ a skilled, aerial photographer to document marine mammals hauled out on Northwest Seal Rock for comparing marine mammal presence on Northwest Seal Rock pre- and post-restoration.
i. The photographer will complete a photographic survey of Northwest Seal Rock using the same helicopter that will transport Society personnel to the island during restoration trips.
ii. For a pre-restoration survey, photographs of all marine mammals hauled-out on the island shall be taken at an altitude greater than 300 m (984 ft) during the first arrival flight to Northwest Seal Rock.
iii. For the post-restoration survey, photographs of all marine mammals hauled-out on the island shall be taken at an altitude greater than 300 m (984 ft) during the last departure flight from Northwest Seal Rock;
iv. The Society and/or its designees will forward the photographs to a biologist capable of discerning marine mammal species. The Society shall provide the data to us in the form of a report with a data table, any other significant observations related to marine mammals, and a report of restoration activities (see Reporting). The Society will make available the original photographs to NMFS or to other marine mammal experts for inspection and further analysis.
Final Report: The holder of this authorization is required to submit a draft monitoring report to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East West Highway, 13th Floor, Silver Spring, MD 20910; phone (301) 427-8401 no later than 90 days after the project is completed. The report must contain the following information:
a. A summary of the dates, times, and weather during all helicopter operations, restoration, and maintenance activities.
b. Species, number, location, and behavior of any marine mammals, observed throughout all monitoring activities.
c. An estimate of the number (by species) of marine mammals that are known to have been exposed to visual and acoustic stimuli associated with the helicopter operations, restoration, and maintenance activities.
d. A description of the implementation and effectiveness of the monitoring and mitigation measures of the IHA and full documentation of methods, results, and interpretation pertaining to all monitoring.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the authorization (if issued), such as an injury (Level A harassment), serious injury, or mortality (
The report must include the following information:
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
The Society shall not resume its activities until we are able to review the circumstances of the prohibited take. We shall work with the Society to determine what is necessary to minimize the likelihood of further prohibited take and ensure Marine Mammal Protection Act compliance. The Society may not resume their activities until notified by us via letter, email, or telephone.
In the event that the Society discovers an injured or dead marine mammal, and the lead visual observer determines that the cause of the injury or death is unknown and the death is relatively recent (
The report must include the same information identified in the paragraph above. Activities may continue while we review the circumstances of the incident. We will work with the Society to determine whether modifications in the activities are appropriate.
In the event that the Society discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (
The Society's staff will provide photographs or video footage (if available) or other documentation of the stranded animal sighting to us.
11. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if the authorized taking is having a more than a negligible impact on the species or stock of affected marine mammals.
NMFS requests comments on our analysis, the draft authorization, and any other aspect of this notice of proposed Authorization for the proposed activities. Please include any supporting data or literature citations with your comments to help inform our final decision on the Society's request for an Authorization.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's (Council) Collaborative Research Committee will hold a public meeting.
The meeting will be held on Friday, Nov. 13, 2015, from 9 a.m. to 12 p.m.
The meeting will be held via webinar. Webinar connection details will be available at:
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The Council has undertaken a short-term collaborative research initiative and intends to provide funding for several projects that address specific, Council-defined collaborative research topics pertaining to mid-Atlantic fisheries. The purpose of this Collaborative Research Committee meeting is to develop a list of 4-6 research priorities which will be used to guide the solicitation of proposals and selection of projects to receive funding. A detailed agenda and background documents will be made available on the Council's Web site (
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application for letter of authorization; request for comments and information.
NMFS has received a request from the U.S. Army Corps of Engineers, Portland District (Corps) for authorization to take marine mammals incidental to the rehabilitation of the jetty system at the mouth of the Columbia River (MCR) including the North Jetty, South Jetty, and Jetty A. The Corps is requesting a Letter of Authorization (LOA) for pile installation and removal associated with construction of temporary offloading facilities at the North Jetty, South Jetty, and Jetty A over the course of 5 years; approximately September 2017 through August 2022. Pursuant to regulations implementing the Marine Mammal Protection Act (MMPA), NMFS is announcing receipt of the Corps' request for the development and implementation of regulations governing the incidental taking of marine mammals and inviting information, suggestions, and comments on the Corps' application and request.
Comments and information must be received no later than November 25, 2015.
Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent
Robert Pauline, Office of Protected Resources, NMFS, (301) 427-8401.
A copy of the Corps' application may be obtained by writing to the address specified above (see
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
The incidental taking of small numbers of marine mammals may be allowed only if NMFS (through authority delegated by the Secretary) finds that the total taking by the specified activity during the specified time period will (i) have a negligible impact on the species or stock(s) and (ii) not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). Further, the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking must be set forth, either in specific regulations or in an authorization.
The allowance of such incidental taking under section 101(a)(5)(A), by harassment (which is defined to include behavioral harassment and injury), serious injury, death, or a combination thereof, requires that regulations be promulgated for the specific activity. Subsequently, a Letter of Authorization may be issued pursuant to the prescriptions established in such regulations, providing that the level of taking will be consistent with the findings made for the total taking allowable under the specific regulations. Under section 101(a)(5)(D), NMFS may authorize such incidental taking by harassment only, for periods of not more than one year, pursuant to requirements and conditions contained within an IHA. The proposed incidental take authorization and establishment of prescriptions through either specific regulations or an IHA requires notice and opportunity for public comment.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
Activities such as those described in the application (
On February 13, 2015, NMFS received an application for a single multi-year project for the taking of marine mammals incidental to the rehabilitation of the North Jetty, South Jetty, and Jetty A at the MCR. NMFS issued an incidental harassment authorization (IHA) for the first year of the project on August 31, 2015 (80 FR 53777 September 8, 2015) allowing the take of specified marine mammals for work associated with the reconstruction of Jetty A only. The IHA is valid from May 1, 2016 through April 30, 2017. The Corps is seeking an LOA for this same project that would cover in-water work associated with continuation of Jetty A reconstruction as well as reconstruction of the North Jetty and South Jetty. The Corps has requested regulations to be effective for the period from approximately summer of 2017 through 2022. The Corps requested authorization to take marine mammals by Level B harassment only: Killer whale (
The Corps is proposing to conduct monitoring actions, repairs, and rehabilitation of the three rubble-mound jetty structures at the MCR. The three structures are referred to as North Jetty, South Jetty, and Jetty A. Initial work on Jetty A will be covered by an IHA which has already been issued. The Corps is requesting a LOA for remaining pile repairs and removal actions at Jetty A, for pile installation and removal at North Jetty, and for pile installation and removal at South Jetty. Pile installation and removal activities are required as part of the construction of four temporary barge offloading facilities. These facilities combined will require up to 96 piles with a maximum diameter of 24-inches and up to 373 sections of Z-piles to retain rock fill. They will be installed via vibratory installation. A full description of the activities proposed by the Corps is described in the application.
Interested persons may submit information, suggestions, and comments concerning the Corps' request (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public hearings on amendments to the U.S. Caribbean Reef fish, spiny lobster and corals and reef associated plants and invertebrates fishery management plans: timing of accountability measure-based closures.
The CFMC is considering modifying the timing for the implementation of accountability measure based closures in the EEZ and specifying how often to revisit the modification. The Council is considering these management measures in order to ensure AM-based closures successfully achieve their conservation objective at the least cost to fishers and the fishing communities, consistent with National Standard 8 the Magnuson-Stevens Fishery Conservation and Management Act.
Following are the actions and management alternatives:
The Amendment consists of two actions:
Action 1: Modify the timimg for the implementation of AM-based closures in the EEZ.
Alternative 1: No action. Continue AM-based closures resulting from an ACL overage beginning on December 31st of the closure year and extending backward in the year for the number of days neccesary to achieve the required reduction in landings.
Alternative 2: Accountability measure-based closures resulting from an ACL overage will begin on September 30th of the closure year and would extend backward into the year for the number of days necessary to achieve the required reduction in landing. This closure start date would apply to all FMUs for each of Puerto Rico commercial and recreational sectors, St. Thomas/St. John, St. Croix, and Caribbean-wide. If for any FMU in any year, the number of days left in the year is not enough to achieve the required reduction in landings, then those additional days would be captured in the opposite direction.
Alternative 3: Accountability measure-based closures resulting from am ACL overage will begin on January 1st of the closure year and would extend forward into the year for the number of days necessary to achieve the required reduction in landing. This closure start date would apply to all FMUs for each of Puerto Rico commercial and recreational sectors, St. Thomas/St. John, St. Croix, and Caribbean-wide.
Alternative 4: Establish a fixed fishing closure start date for the implememtation of AMs for each FMU (
Alternative 4 Sub-alternatives:
Alternative 4(a): Closure to start the last day of the month with highest average landings.
Alternative 4(b): Closure to start the last day of the month with lowest average landing.
Alternative 4—Puerto Rico (Commercial):
Sub-alternative 4(a): Closure to start the last day of the month that has the highest landings based on the most recent three years of available landings data.
Sub-alternative 4(b): Closure to start the last day of the month with lowest landings based on the most recent three years of available landings data.
Alternative 4—Puerto Rico (Recreational):
Sub-alternative 4(a): Closure to start the last day of the month that has the highest landings based on the most recent three years of available landings data.
Sub-alternative 4(b): Closure to start the last day of the month with lowest landings based on the most recent three years of available landings data.
Alternative 4—St. Thomas/St. John, USVI (Commercial and Recreational combined):
Sub-alternative 4(a): Closure to start the last day of the month that has the highest landings based on the most recent three years of available landings data.
Sub-alternative 4(b): Closure to start the last day of the month with lowest landings based on the most recent three years of available landings data.
Alternative-—Caribbean-Wide (Commercial and Recreational combined)
Sub-alternative 4(a): Closure to start the last day of the month that has the highest landings based on the most recent three years of available landings data (shortest closure time).
Sub-alternative 4(b): Closure to start the last day of the month with lowest landings based on the most recent three years of available landings data.
Action 2: Specify how often to revisit the approach selected in Action 1.
Alternative 1: No action. Do not specify how often the approach chosen should be revisited.
Alternative 2 (Preferred): Review the approach selected no longer than 2 years from implementation and every 2 years thereafter.
Alternative 3: Review the approach selected no longer than 5 years from implementation and every five years thereafter.
Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918-1903, telephone (787) 766-5926.
Copy of the document, “Amendments to the U.S. Caribbean Reef fish, Spiny Lobster and Corals and Reef Associated Plants and Invertebrates Fishery Management Plans: Timing of Accountability Measure-Based Closures”, can be found at the CFMC Web page:
Written comments can be sent to the Council not later than December 10, 2015, by regular mail to the address below, or via email to
These meetings are physically accessible to people with disabilities. For more information or request for sign language interpretation and other auxiliary aids, please contact Mr. Miguel A. Rolón, Executive Director, Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico, 00918-1903, telephone (787) 766-5926, at least 5 days prior to the meeting date.
The next meeting of the U.S. Commission of Fine Arts is scheduled for 19 November 2015, at 9:00 a.m. in the Commission offices at the National Building Museum, Suite 312, Judiciary Square, 401 F Street NW., Washington, DC 20001-2728. Items of discussion may include buildings, parks and memorials.
Draft agendas and additional information regarding the Commission are available on our Web site:
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (“Commission” or “CFTC”) is announcing an opportunity for public comment on the proposed renewal of a collection of certain information by the agency. Under the Paperwork Reduction Act (“PRA”), Federal agencies are required to publish notice in the
Comments must be submitted on or before December 28, 2015.
You may submit comments, identified by “OMB Control No. 3038-0094,” by any of the following methods:
• The Agency's Web site, at
•
•
•
Please submit your comments using only one method.
Christopher Hower, Special Counsel, Division of Clearing and Risk, Commodity Futures Trading Commission, (202) 418-6703; email:
Under the PRA, Federal agencies must obtain approval from the Office of Management and Budget (“OMB”) for each collection of information they conduct or sponsor. “Collection of Information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3 and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), requires Federal agencies to provide a 60-day notice in the
Section 4s(j)(2) requires each SD and MSP to have risk management systems adequate for managing its business. Section 4s(j)(4) requires each SD and MSP to have internal systems and procedures to perform any of the functions set forth in Section 4s.
Section 4d requires FCMs to register with the Commission. It further requires FCMs to segregate customer funds. Section 4f requires FCMs to maintain certain levels of capital. Section 4g establishes reporting and recordkeeping requirements for FCMs. Pursuant to these provisions, the Commission adopted § 1.73 which applies to clearing members that are FCMs and § 23.609 which applies to clearing members that are SDs or MSPs. These provisions require these clearing members to have procedures to limit the financial risks they incur as a result of clearing trades and liquid resources to meet the obligations that arise. The regulations require clearing members to:
(1) Establish credit and market risk-based limits based on position size, order size, margin requirements, or similar factors;
(2) use automated means to screen orders for compliance with the risk-based limits;
(3) monitor for adherence to the risk-based limits intra-day and overnight;
(4) conduct stress tests of all positions in the proprietary account and all positions in any customer account that could pose material risk to the futures commission merchant at least once per week;
(5) evaluate its ability to meet initial margin requirements at least once per week;
(6) evaluate its ability to meet variation margin requirements in cash at least once per week;
(7) evaluate its ability to liquidate the positions it clears in an orderly manner, and estimate the cost of the liquidation at least once per month; and
(8) test all lines of credit at least once per quarter.
Each of these items has been observed by Commission staff as an element of an existing sound risk management program at an SD, MSP, or FCM. The Commission regulations require each clearing member to establish written procedures to comply with this regulation and to keep records documenting its compliance. The information collection obligations imposed by the regulations are necessary to implement certain provisions of the Act, including ensuring that registrants exercise effective risk management and for the efficient operation of trading venues among SDs, MSPs, and FCMs. 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.
With respect to the collection of information, the CFTC invites comments on:
• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate automated electronic,
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
There are no capital costs or operating and maintenance costs associated with this collection.
Consumer Product Safety Commission.
Notice.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the Consumer Product Safety Commission (“CPSC” or “Commission”) requests comments on a proposed extension of approval of a collection of information relating to certain children's articles known as baby-bouncers and walker-jumpers, approved previously under OMB Control No. 3041-0019. The Commission will consider all comments received in response to this notice before requesting an extension of this collection of information from the Office of Management and Budget (“OMB”).
Submit written or electronic comments on the collection of information by December 28, 2015.
You may submit comments, identified by Docket No. CPSC-2012-0034, by any of the following methods:
Robert H. Squibb, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; (301) 504-7815, or by email to:
CPSC seeks to renew the following currently approved collection of information:
Products that are the subject of this information collection are distinguishable from the infant bouncer seats that are the subject of the
The products subject to this information collection are typically described as baby walkers, and allow the child to jump in place or assist with walking. Such products are intended for use with children that are beginning to develop leg strength to aid in learning to walk. Comments on the information collection requirements for these products should be submitted through the process outlined in the Addresses section above.
The Commission solicits written comments from all interested persons about the proposed collection of information. The Commission specifically solicits information relevant to the following topics:
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (CNCS), as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) (44 U.S.C. 3506(c)(2)(A)). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirement on respondents can be properly assessed.
Currently, CNCS is soliciting comments concerning the Operation AmeriCorps Evaluation. This two year evaluation seeks to assess the implementation of the new Operation AmeriCorps initiative, and to report on early results from the intended outcomes of each grantee's project. The evaluation will examine the extent to which multiple streams of national service are integrated and complement one another in each project; determine whether and how community capacity is being developed and sustained; and examine the Operation AmeriCorps grant making process to determine if this type of grant could be successfully used in future grants competitions. Researchers from CNCS will collect qualitative and quantitative data from grantees and their partners, AmeriCorps members, member supervisors, and program beneficiaries. Operation AmeriCorps grantees are required to participate in the evaluation as a condition of grant award.
Copies of the information collection request can be obtained by contacting the office listed in the Addresses section of this Notice.
Written comments must be submitted to the individual and office listed in the
You may submit comments, identified by the title of the information collection activity, by any of the following methods:
(1)
(2)
(3)
Individuals who use a telecommunications device for the deaf (TTY-TDD) may call 1-800-833-3722 between 8:00 a.m. and 8:00 p.m. Eastern Time, Monday through Friday.
Joseph Breems, 202-606-6992, or by email at
CNCS is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the efficient performance of the functions of CNCS, 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 expected to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
This proposed two year evaluation seeks to assess the implementation of the new Operation AmeriCorps grant initiative, and to report on early results from the intended outcomes of each grantee's project. The evaluation will examine the extent to which multiple streams of national service are integrated and complement one another in each project; determine whether and how community capacity is being developed and sustained; and examine the Operation AmeriCorps grant making process to determine if this type of grant making process could be successful in the future.
This is a new information collection request. Researchers from CNCS will collect qualitative and quantitative data from grantees and their partners, AmeriCorps members, member supervisors, and program beneficiaries. Quantitative data will be collected through a survey administered two times per year; qualitative information will be collected through interviews and focus groups.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Office of Fossil Energy, Department of Energy (DOE).
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during September 2015, it issued orders granting authority to import and export natural gas, to import and export liquefied natural gas (LNG), to vacate authority, and denying request for rehearing. These orders are summarized in the attached appendix and may be found on the FE Web site at
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy.
Notice and request for comments.
The Department of Energy (DOE) invites public comment on a proposed collection of information that DOE is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995. 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, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments regarding this proposed information collection must be received on or before November 10, 2015. If you anticipate difficulty in submitting comments within that period, contact the person listed in
Written comments may be sent to Mr. Chris Early, U.S. Department of Energy, Building Technologies Office, Mail Stop EE-5B, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585-0121 or by fax at 202-586-4617 or by email at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Mr. Chris Early, U.S. Department of Energy, Building Technologies Office, Mail Stop EE-5B, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585-0121.
This information collection request contains: (1) OMB No. New; (2) Information Collection Request Title: Programs for Improving Energy Efficiency in Residential Buildings (3) Type of Request: New; (4) Purpose: The proposed collection will enable DOE to understand the universe of organizations participating in four voluntary programs: Zero Energy Ready Home Program, the Better Buildings Residential Network, the Home Energy Score, and the Home Performance with ENERGY STAR Program (HPwES). The DOE published a notice and request for comments for 60 days related to this current request to collect information on May 15, 2014 (79 FR 27867) and received no comments. That notice asked for comments for four voluntary programs at DOE, three of which are the same as for this current request for clearance and one is different. The DOE decided not to collect information for one of the four programs that was part of that May 15, 2014 request for comments, the Building America Program. The DOE, however, is adding the HPwES program to this current request for comments. The purpose of this 15 day notice and request for comments is to again request public comments on the three programs that were in the earlier 60 day notice and request for comments and also request comments on the HPwES program which was not included in that earlier 60 day FR notice. Through these four programs DOE encourages and assists the people and organizations that volunteer to participate in them to build and renovate new and existing houses to use less energy. The program partners who voluntarily participate in the programs consist of most of the actors in the home building industry including home owners, home builders, home builder tradesman and associations, home design professionals, students in architecture and related building construction industries, home energy raters, home energy auditors, home inspectors, building consultants, manufacturers of building products, professional trainers, utility companies, home building and manufacturing industry associations, consumer and home building industry advocacy organizations, financial institutions, non-profit organizations, educational institutions, nonprofit organizations, energy program administrators and implementers, Home Performance with ENERGY STAR sponsors, state or local government energy offices or agencies, clean energy non-profits with existing residential energy programs and other organizations who believe peer sharing will help them improve their effectiveness in encouraging homeowners to complete energy upgrades. DOE proposes to collect information about the participants such as their names and addresses, their evaluations of training they received about the programs, descriptions of their qualifications to conduct training for the programs, their plans to get people to participate in the programs, their certifications describing how they can assess homes, estimates of how many homes they can get to participate in the programs, and information about the homes. The collected information will help DOE understand the participating partners' activities and progress toward achieving scheduled milestones enabling DOE to make decisions about the best way to run the programs and respond to partners' needs to improve their operations and actions to lower energy consumption. The portion of the HPwES Program for which DOE is requesting comments was run by EPA. The operation of part of the HPwES program is to be transferred to the DOE from the Environmental Protection Agency (EPA). The DOE intends to operate HPwES substantially similarly to the way EPA operates the program. The difference in estimates of numbers of responses, number of respondents, burden hours, and costs to respond between the HPwES that was approved by OMB for EPA and the one requested to be approved by DOE are minor. The OMB did give the EPA clearance for collection of information in the HPwES program on August 14, 2014. OMB gave it the ICR Control Number 2060-0586. EPA did not receive any comments in either the 30 or 60 day
The U.S. Code, Title 42, Chapter 149, Subchapter IX, Part A, Section 16191—Energy Efficiency.
Environmental Protection Agency (EPA).
Notice of final action.
Pursuant to Clean Air Act (CAA) Section 505(b)(2) and 40 CFR 70.8(d), the EPA Administrator signed an Order, dated September 24, 2015, granting in part and denying in part two petitions asking EPA to object to operating permits issued by the Texas Commission on Environmental Quality for Shell Chemical LP's Deer Park Chemical Plant and Shell Oil Company's Deer Park Refinery (Title V operating permit numbers O1668 and O1669). The EPA's September 24, 2015 Order responds to the two petitions, dated May 19, 2014, submitted by the Environmental Integrity Project (EIP), Sierra Club, and Air Alliance Houston. Sections 307(b) and 505(b)(2) of the CAA provide that a petitioner may ask for judicial review by the United States Court of Appeals for the appropriate circuit of those portions of the Order that deny issues raised in the petition. Any petition for review shall be filed within 60 days from the date this notice appears in the
You may review copies of the final Order, the petition, and other supporting information at EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733.
EPA requests that if at all possible, you contact the individual listed in the
Aimee Wilson at (214) 665-7596, email address:
The CAA affords EPA a 45-day period to review, and object, as appropriate, to a title V operating permit proposed by a state permitting authority. Section 505(b)(2) of the CAA authorizes any person to petition the EPA Administrator, within 60 days after the expiration of this review period, to object to a title V operating permit if EPA has not done so. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise such objections during the comment period or unless the grounds for the objection arose after this period.
The Petitioners maintain that the Shell Deer Park title V operating permits are inconsistent with the Act based on the following contentions: (1) The proposed permits' incorporation by reference of minor NSR authorizations fails to assure compliance; (2) The proposed permits' incorporation by reference of permits by rule fails to assure compliance; (3) The proposed permits fail to require monitoring, recordkeeping, and reporting sufficient to assure compliance with applicable requirements; (4) The proposed permit for the Deer Park Refinery impermissibly uses the permit shield provisions; (5) The proposed permits fail to require Shell to obtain SIP-approved authorizations for qualified facilities changes; (6) The proposed permit for the Chemical Plant fails to address Shell's non-compliance with 30 Texas Administrative Code section 116.116(d), which requires PBRs for previously permitted facilities to be incorporated into existing permits on renewal or amendment; (7) The Executive Director's revision to draft permits' special condition 28 in O1668 and special condition 29 in O1669 are improper; and (8) The proposed permits must clarify that credible evidence may be used by citizens to enforce the terms and conditions of the permits. The claims are described in detail in Section IV of the Order.
Pursuant to sections 505(b) and 505(e) of the Clean Air Act (42 U.S.C. 7661d(b) and (e)) and 40 CFR 70.7(g) and 70.8(d), the Texas Commission on Environmental Quality (TCEQ) has 90 days from the receipt of the Administrator's order to resolve the objections identified in Claims 2., 3.B., 3.C., and 6. of the Order and submit a proposed determination or termination, modification, or revocation and reissuance of the Shell Deer Park title V permits in accordance with EPA's objections. The Order issued on September 24, 2015 responds to the Petitions and explains the basis for EPA's decisions.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) Science Advisory Board (SAB) Staff Office announces a public teleconference of the Clean Air Scientific Advisory Committee (CASAC) Secondary National Ambient Air Quality Standards (NAAQS) Review Panel for Oxides of Nitrogen and Sulfur to peer review EPA's
The CASAC Secondary NAAQS Review Panel for Oxides of Nitrogen and Sulfur will hold a teleconference on Tuesday December 1, 2015 from 1:00 p.m. to 5:00 p.m. (Eastern Standard Time).
Any member of the public wishing to obtain information concerning the public meeting may contact Dr. Sue Shallal, Designated Federal Officer (DFO), EPA Science Advisory Board Staff Office (1400R), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; by telephone/voice mail at (202) 564-2057 or at
The CASAC was established pursuant to the Clean Air Act (CAA) Amendments of 1977, codified at 42 U.S.C. 7409(d)(2), in part to review air quality criteria and NAAQS and recommend any new NAAQS and revisions of existing criteria and NAAQS as may be appropriate. The CASAC is a Federal Advisory Committee chartered under the Federal Advisory Committee Act (FACA), 5 U.S.C., App. 2. Section 109(d)(1) of the CAA requires that the Agency periodically review and revise, as appropriate, the air quality criteria and the NAAQS for the six “criteria” air pollutants, including oxides of nitrogen and oxides of sulfur. EPA is currently reviewing the secondary (welfare-based) ambient air quality standards for oxides of nitrogen and sulfur and has requested CASAC advice. Accordingly, the SAB Staff Office solicited nominations for the CASAC Secondary NAAQS Review Panel for Oxides of Nitrogen and Sulfur on March 27, 2014 (79 FR 17147-17149). Membership of the Panel is listed at
Pursuant to FACA and EPA policy, notice is hereby given that the CASAC Secondary National Ambient Air Quality Standards Review Panel for Oxides of Nitrogen and Sulfur will hold a public teleconference to peer review EPA's
Federal advisory committees and panels, including scientific advisory committees, provide independent advice to EPA. Members of the public can submit comments for a federal advisory committee to consider as it develops advice for EPA. Interested members of the public may submit relevant written or oral information on the topic of this advisory activity, and/or the group conducting the activity, for the CASAC to consider during the advisory process. Input from the public to the CASAC will have the most impact if it provides specific scientific or technical information or analysis for CASAC panels to consider or if it relates to the clarity or accuracy of the technical information. Members of the public wishing to provide comment should contact the DFO directly.
Environmental Protection Agency (EPA).
Notice.
This action adds the Beaches Environmental Assessment and Coastal Health (BEACH) Act grant program to the list of the Environmental Protection Agency's (EPA) environmental grant programs eligible for inclusion in Performance Partnership Grants (PPGs).
Reynold Meni, Office of Congressional and Intergovernmental Relations, Office of the Administrator (Mail Code 1301), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 564-3669; fax number: (202) 501-1540; email address:
The Omnibus Consolidated Rescissions and Appropriations Act of 1996 (Pub. L.
Public Law 105-65 amended the PPG authority by authorizing “interstate agencies, tribal consortia, and air pollution control agencies” to receive PPGs. Pursuant to the authority granted in Public Law 104-134 and Public Law 105-65, EPA promulgated PPG regulations in January of 2001 as part of the Agency's revision of 40 CFR part 35, the rules governing categorical environmental program grants. The regulation at 40 CFR 35.133(b) states that: “The Administrator may, in guidance or regulation, describe subsequent additions, deletions, or changes to the list of environmental programs eligible for inclusion in Performance Partnership Grants.”
EPA is authorized under Section 406 of the Clean Water Act (CWA), as amended by the Beaches Environmental Assessment and Coastal Health (BEACH) Act (Pub. L. 106-284), to award program development and implementation grants to eligible states, territories, tribes, and local governments to support microbiological monitoring and public notification of the potential for exposure to disease-causing microorganisms in coastal recreation waters, including the Great Lakes. The BEACH Act grant program is funded in the same line item that funds categorical grants for “multimedia or single media pollution prevention, control and abatement and related environmental activities” and, therefore, this grant program is eligible for inclusion in PPGs. This notice is made pursuant to 40 CFR 35.133(b), to inform entities eligible to receive PPGs that the program listed above may be included in a PPG subject to any limitations herein defined. Hereafter, BEACH Act grants are eligible for inclusion in PPGs and may be included in a PPG at the request of the appropriate official of an eligible entity, subject to EPA's regulations at 2 CFR part 200 and 2 CFR part 1500 and 40 CFR 35.001-35.138 and 35.500-35.538. The authority to issue this
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before December 28, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before December 28, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Federal Communications Commission.
Notice.
The Enforcement Bureau (Bureau) gives notice of Wes Yui Chew's debarment from the federal Lifeline universal service support mechanism (Lifeline program) for a period of three years. During this debarment period, Mr. Chew is prohibited from participating in activities associated with or related to the Lifeline program, including the receipt of funds or discounted services through the Lifeline program, or consulting with, assisting, or advising applicants or service providers regarding the Lifeline program.
Debarment commences on the date Mr. Chew receives the debarment
Celia Lewis, Paralegal Specialist, Federal Communications Commission, Enforcement Bureau, Investigations and Hearings Division, Room 4-A422, 445 12th Street SW., Washington, DC 20554. Celia Lewis may be contacted by phone at (202) 418-7456 or email at
The Bureau debars Mr. Chew for a period of three years pursuant to 47 CFR 54.8 and 0.111(a)(14). Mr. Chew's conviction for money laundering in violation of 18 U.S.C. 1957(a), in connection with fraudulent claims against the Lifeline program is the basis for this debarment. Attached is the Notice of Debarment, DA 15-1075, which was mailed to Mr. Chew and released on September 25, 2015. The complete text of the Notice of Debarment is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portal II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. In addition, the complete text is available on the FCC's Web site at
The Federal Communications Commission (Commission) hereby notifies you that, pursuant to section 54.8 of the Commission's rules, you are prohibited from participating in activities associated with or related to the federal low-income support mechanism (Lifeline program) for three years from either the date of your receipt of this Notice of Debarment or of its publication in the Federal Register, whichever comes first (Debarment Date).
On May 26, 2015, the Commission's Enforcement Bureau (Bureau) sent you a Notice of suspension and initiation of debarment proceeding (
As discussed in the
In accordance with the Commission's debarment rules, you were required to file with the Commission any opposition to your suspension or its scope, or to your proposed debarment or its scope, no later than 30 calendar days from either the date of your receipt of the
For the foregoing reasons, you are debarred from involvement with the Lifeline program for three years from the Debarment Date.
NOTICE IS HEREBY GIVEN that the Federal Deposit Insurance Corporation (“FDIC”) as Receiver for Cortez Community Bank, Brooksville, Florida (“the Receiver”) intends to terminate its receivership for said institution. The
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 32.1, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
NOTICE IS HEREBY GIVEN that the Federal Deposit Insurance Corporation (“FDIC”) as Receiver for Meritor Savings Bank, Philadelphia, Pennsylvania (“the Receiver”) intends to terminate its receivership for said institution. The FDIC was appointed receiver of Meritor Savings Bank on December 11, 1992. The liquidation of the receivership assets has been completed. To the extent permitted by available funds and in accordance with law, the Receiver will be making a final dividend payment to proven creditors.
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 34.6, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that at 11:15 a.m. on Thursday, October 22, 2015, the Board of Directors of the Federal Deposit Insurance Corporation met in closed session to consider matters related to the Corporation's supervision, corporate, and resolution activities.
In calling the meeting, the Board determined, on motion of
Vice Chairman Thomas M. Hoenig, seconded by Director
Thomas J. Curry (Comptroller of the Currency), concurred in by Director Richard Cordray (Director, Consumer Financial Protection Bureau), and Chairman Martin J. Gruenberg, that Corporation business required its consideration of the matters which were to be the subject of this meeting on less than seven days' notice to the public; that no earlier notice of the meeting was practicable; that the public interest did not require consideration of the matters in a meeting open to public observation; and that the matters could be considered in a closed meeting by authority of subsections (c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), (c)(9)(B), and (c)(10) of the “Government in the Sunshine Act” (5 U.S.C. 552b(c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), (c)(9)(B), and (c)(10).
Federal Election Commission.
999 E Street NW., Washington, DC (ninth floor).
This meeting will be open to the public.
Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Shawn Woodhead Werth, Secretary and Clerk, at (202) 694-1040, at least 72 hours prior to the meeting date.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Centers for Medicare & Medicaid Services.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by December 28, 2015.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA) is announcing the availability of a guidance for industry entitled “National Environmental Policy Act; Environmental Assessments for Tobacco Products; Categorical Exclusions—Small Entity Compliance Guide.” This guidance is intended to help small businesses understand the recent changes to FDA's National Environmental Policy Act (NEPA)-implementing regulations, which will allow certain classes of actions on tobacco product marketing applications to be excluded from the requirements to prepare an environmental assessment (EA) or an environmental impact statement (EIS). This will decrease the amount of time required for industry to complete, and for FDA to review, applications.
Submit either electronic or written comments on Agency guidances at any time.
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:
•
• 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 this guidance to the Center for Tobacco Products, Food and Drug Administration, Document Control Center, Bldg. 71, Rm. G335, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request or include a fax number to which the guidance document may be sent. See the
Katherine Collins, Center for Tobacco Products, Food and Drug Administration, 10903 New Hampshire Ave., Document Control Center, Bldg. 71, Rm. G335, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002,
FDA is announcing the availability of a guidance for industry entitled “National Environmental Policy Act; Environmental Assessments for Tobacco Products; Categorical Exclusions—Small Entity Compliance Guide.” This guidance is intended to help small businesses understand and comply with FDA's implementation of NEPA and the Council on Environmental Quality (CEQ) regulations for classes of actions for tobacco products as provided by the final rule. Specifically, this guidance is intended to help small businesses understand which classes of actions for tobacco products require at least the preparation of an EA, and how to apply for categorical exclusions if they qualify based on their particular circumstance.
NEPA and CEQ regulations require each Federal Agency to assess, as an integral part of its decisionmaking process, the environmental impacts of any proposed Federal action to ascertain the environmental consequences of that action on the quality of the human environment and to ensure that the interested and affected public is appropriately informed (42 U.S.C. 4332(2); 40 CFR 1506.6). FDA regulations governing its responsibilities under NEPA are codified at 21 CFR part 25, and the CEQ regulations are codified at 40 CFR parts 1500 to 1508.
CEQ oversees FDA's compliance with NEPA. For major Federal actions that may have a significant environmental impact, FDA can either prepare an EIS or prepare an EA. An EA provides sufficient information and analysis for FDA to determine whether to prepare an EIS or issue a finding of no significant impact (21 CFR 25.20; 40 CFR 1501.4). FDA is responsible for the scope and content of an EA and generally requires an applicant to prepare an EA and make necessary corrections to it (21 CFR 25.40(b)).
Categorically excluded actions refer to a category of actions that have been found not to individually or cumulatively have a significant effect on the quality of the human environment and which do not normally require the preparation of an EA or EIS (40 CFR 1508.4). However, as required under 21 CFR 25.21 and 40 CFR 1508.4, FDA will require preparation of at least an EA for any specific action that normally would be excluded if extraordinary circumstances are present such that the specific proposed action may have the potential to significantly affect the quality of the human environment. In compliance with section 212 of the Small Business Regulatory Enforcement Fairness Act (Pub. L. 104-121), FDA is making available this small entity compliance guide stating in plain language the legal requirements of the September 24, 2015, final rule, set forth in 21 CFR part 25.
This guidance is being issued consistent with FDA's good guidance
Persons with access to the Internet may obtain an electronic version of the guidance at either
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of an Interagency Autism Coordinating Committee (IACC or Committee) meeting.
The purpose of the IACC meeting is to introduce the members of the new committee and discuss business, agency updates and issues related to autism spectrum disorder (ASD) research and services activities. The meeting will be open to the public and will be accessible by webcast and conference call.
For IACC Public Comment guidelines, please see:
Any member of the public interested in presenting oral comments to the Committee must notify the Contact Person listed on this notice by 5:00 p.m. ET on Monday, November 9, 2015, with their request to present oral comments at the meeting. Interested individuals and representatives of organizations must submit a written/electronic copy of the oral presentation/statement including a brief description of the organization represented by 5:00 p.m. ET on Tuesday, November 10, 2015. Statements submitted will become a part of the public record. Only one representative of an organization will be allowed to present oral comments and presentations will be limited to three to five minutes per speaker, depending on the number of speakers to be accommodated within the allotted time. Speakers will be assigned a time to speak in the order of the date and time when their request to speak is received, along with the required submission of the written/electronic statement by the specified deadline.
In addition, any interested person may submit written public comments to the IACC prior to the meeting by sending the comments to the Contact Person listed on this notice by 5:00 p.m. ET on Tuesday, November 10, 2015. The comments should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person. NIMH anticipates written public comments received by 5:00 p.m. ET, Tuesday, November 10, 2015 will be presented to the Committee prior to the meeting for the Committee's consideration. Any written comments received after the 5:00 p.m. EST, November 10, 2015 deadline through November 16, 2015 will be provided to the Committee either before or after the meeting, depending on the volume of comments received and the time required to process them in accordance with privacy regulations and other applicable Federal policies. All written public comments and oral public comment statements received by the deadlines for both oral and written public comments will be provided to the IACC for their consideration and will become part of the public record.
In the 2009 IACC Strategic Plan, the IACC listed the “Spirit of Collaboration” as one of its core values, stating that, “We will treat others with respect, listen to diverse views with open minds, discuss submitted public comments, and foster discussions where participants can comfortably offer opposing opinions.” In keeping with this core value, the IACC and the NIMH Office of Autism Research Coordination (OARC) ask that members of the public who provide public comments or participate in meetings of the IACC also seek to treat others with respect and consideration in their communications and actions, even when discussing issues of genuine concern or disagreement.
The meeting will be open to the public through a conference call phone number and Webcast live on the Internet. Members of the public who participate using the conference call phone number will be able to listen to the meeting but will not be heard. If you experience any technical problems with the Webcast or conference call, please send an email to
Individuals who participate in person or by using these electronic services and who need special assistance, such as captioning of the conference call or other reasonable accommodations, should submit a request to the Contact Person listed on this notice at least 5 days prior to the meeting.
As part of security procedures, attendees should be prepared to present a photo ID at the meeting registration desk during the check-in process. Pre-registration is recommended. Seating will be limited to the room capacity and seats will be on a first come, first served basis, with expedited check-in for those who are pre-registered.
Meeting schedule subject to change.
Information about the IACC is available on the Web site:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Board of Scientific Counselors, National Human Genome Research Institute.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the NATIONAL HUMAN GENOME RESEARCH INSTITUTE, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the urgent need to meet timing limitations imposed by the intramural research review cycle.
Coast Guard, DHS.
Sixty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, the U.S. Coast Guard intends to submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting approval of revisions to the following collection of information: 1625-0033, Display of Fire Control Plans for Vessels. Our ICR describe the information we seek to collect from the public. Before submitting this ICR to OIRA, the Coast Guard is inviting comments as described below.
Comments must reach the Coast Guard on or before December 28, 2015.
You may submit comments identified by Coast Guard docket number [USCG-2015-0895] to the Coast Guard using the Federal eRulemaking Portal at
A copy of the ICR is available through the docket on the Internet at
Contact Mr. Anthony Smith, Office of Information Management, telephone 202-475-3532, or fax 202-372-8405, for questions on these documents.
This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collection. There is one ICR for each Collection.
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. In response to your comments, we may revise this ICR or decide not to seek approval of revisions of the Collection. We will consider all comments and material received during the comment period.
We encourage you to respond to this request by submitting comments and related materials. Comments must contain the OMB Control Number of the ICR and the docket number of this request, [USCG-2015-0895], and must be received by December 28, 2015.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
1.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of South Carolina (FEMA-4241-DR), dated October 5, 2015, and related determinations.
Effective Date: October 15, 2015.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of South Carolina is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of October 5, 2015.
Abbeville, Anderson, Fairfield, Laurens, and McCormick Counties for Public Assistance.
Bamberg, Colleton, Darlington, Florence, Kershaw, and Newberry Counties for Public Assistance (already designated for Individual Assistance).
Berkeley, Georgetown, Richland, and Williamsburg Counties for Public Assistance (Categories C-G) (already designated for Individual Assistance and debris removal and emergency protective measures [Categories A and B], including direct federal assistance, under the Public Assistance program).
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of South Carolina (FEMA-4241-DR), dated October 5, 2015, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of South Carolina is hereby amended to include the following area among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of October 5, 2015.
Newberry County for Individual Assistance.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
National Protection and Programs Directorate, DHS.
Committee Management; Notice of Partially Closed Federal Advisory Committee Meeting.
The President's National Security Telecommunications Advisory Committee (NSTAC) will meet on Tuesday, November 10, 2015, in Washington, DC. The meeting will be partially closed to the public.
The NSTAC will meet in a closed session on Tuesday, November 10, 2015, from 8:30 a.m. to 10:45 a.m. and in an open session on Tuesday, November 10, 2015, from 11:00 a.m. to 2:20 p.m.
The open, public session will be held at the Department of Homeland Security Immigration and Customs Enforcement facility, 500 12th Street SW., Washington, DC, and will begin at 11:00 a.m. For information on facilities or services for individuals with disabilities, to request special assistance at the meeting, or to attend in person contact
We are inviting public comment on the issues the NSTAC will consider, as listed in the
•
•
•
•
A public comment period will be held during the open portion of the meeting on Tuesday, November 10, 2015, from 1:55 p.m. to 2:10 p.m. and speakers are requested to limit their comments to three minutes. Please note that the public comment period may end before the time indicated, following the last call for comments. Please contact
Helen Jackson, NSTAC Designated Federal Officer, Department of Homeland Security, telephone (703) 235-5321 or
Notice of this meeting is given under the
The NSTAC will meet in a closed session to hear a classified briefing regarding current cyber threats against the communications infrastructure, and to discuss potential future NSTAC study topics.
The first of these agenda items, the classified briefing, will provide members with information on current threats against the communications infrastructure. Disclosure of these threats would provide criminals who wish to intrude into commercial and Government networks with information on potential vulnerabilities and mitigation techniques, also weakening existing cybersecurity defense tactics. This briefing will be classified at the top secret level, thereby exempting disclosure of the content by statute. Therefore, this portion of the meeting is required to be closed pursuant to 5 U.S.C. 552b(c)(1)(A).
The second agenda item, the discussion of potential NSTAC study topics, will address areas of critical cybersecurity vulnerabilities and priorities for Government. Government officials will share data with NSTAC members on initiatives, assessments, and future security requirements across public and private networks. The data to be shared includes specific vulnerabilities within cyberspace that affect the Nation's communications and information technology infrastructures and proposed mitigation strategies. Disclosure of this information to the public would provide criminals with an incentive to focus on these vulnerabilities to increase attacks on our cyber and communications networks. Therefore, this portion of the meeting is likely to significantly frustrate implementation of proposed DHS actions and is required to be closed pursuant to 5 U.S.C. 552b(c)(9)(B).
Office of Cybersecurity and Communications, National Protection and Programs Directorate, Department of Homeland Security.
Notice of public meeting.
In accordance with EO 13691, DHS has entered into a cooperative agreement with a non-governmental ISAO Standards Organization led by the University of Texas at San Antonio with support from the Logistics Management Institute (LMI) and the Retail Cyber Intelligence Sharing Center (R-CISC). This Notice announces the ISAO Standards Organization's initial public meeting on November 9, 2015 to discuss Standards for the development of ISAOs, as related to Executive Order 13691, “Promoting Private Sector Cybersecurity Information Sharing” of February 13, 2015. This meeting builds off of the workshops held on June 9, 2015 at the Volpe Center in Cambridge, MA; and July 30, 2015 at San Jose State University in San Jose, CA.
The meeting will be held on November 9, 2015, from 8:00 a.m. to 5:00 p.m. The meeting may conclude before the allotted time if all matters for discussion have been addressed.
The meeting location is LMI Headquarters at 7940 Jones Branch Drive, Tysons, VA 22102.
Executive Order 13691 can be found at:
If you have questions concerning the meeting, please contact
On February 13, 2015, President Obama signed Executive Order 13691 intended to enable and facilitate “private companies, nonprofit organizations, and executive departments and agencies . . . to share information related to cybersecurity risks and incidents and collaborate to respond in as close to real time as possible.”
At the Standards Organization's initial public meeting, they intend to review the results of previous DHS-hosted public workshops, and share a proposed standards framework and standards development process. In addition, they will solicit suggestions on existing standards, guidelines, and best practices that can be shared as provisional guidance until formal ISAO standards are established. Minutes from
For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact
Members of the public may attend this meeting by RSVP only up to the seating capacity of the room. The Breakout Panels that take place in the LMI Conference Facility will be audio recorded. The audio recordings will be made available on the DHS ISAO Web page,
DHS and the ISAO Standards Organization encourages you to participate in this meeting by submitting comments to the ISAO inbox (
You may also submit written comments to the docket using any one of the following methods:
(1)
(2)
(3)
To avoid duplication, please use only one of these three methods. All comments must either be submitted to the online docket on or before November 4, 2015, or reach the Docket Management Facility by that date.
6 U.S.C. 131-134; 6 CFR 29; E.O.13691.
Transportation Security Administration, DHS.
60-day notice.
The Transportation Security Administration (TSA) invites public comment on one currently approved Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0043, abstracted below, that we will submit to OMB for renewal in compliance with the Paperwork Reduction Act. The ICR describes the nature of the information collection and its expected burden. The collection involves a certification form that applicants for the Office of Law Enforcement/Federal Air Marshal Service are required to complete regarding their mental health history.
Send your comments by December 28, 2015.
Comments may be emailed to
Christina A. Walsh at the above address, or by telephone (571) 227-2062.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Pursuant to 49 U.S.C. 44917, TSA has authority to provide for deployment of Federal Air Marshals (FAMs) on passenger flights and provide for appropriate training, equipping, and supervision of FAMs. In furtherance of this authority, TSA policy requires that applicants for the Office of Law Enforcement/Federal Air Marshal Service positions meet certain medical and mental health standards.
In order to evaluate whether applicants meet TSA standards, applicants must undergo a psychological evaluation determining that they do not have an established medical history or clinical diagnosis of psychosis, neurosis, or any other personality or mental disorder that clearly demonstrates a potential hazard to the performance of FAM duties or the safety of self or others. As part of the psychological evaluation, applicants are required to complete a certification form regarding their mental health history and provide an explanation for anything they cannot certify. Applicants will be asked whether they can certify various statements including that they have never been removed from work for medical or psychological reasons.
Upon completion, applicants submit the certification form directly to the FAMS' Medical Programs Section (FAMS MPS) for initial screening via fax, electronic upload via scanning document, mail, or in person. The FAMS MPS screens all certification forms received. Any explanations for uncertified items received will generally require further review and follow-up by a personal psychologist or psychiatrist. This certification is carefully geared to capitalize on other elements of the assessment process, such as personal interviews, physical task assessment, background investigation, as well as the other components of the medical
It will take each respondent approximately one hour to complete the certification form for a total annual hour burden of 600 hours.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service (Service), have received an application from The Meier Group, LLC (applicant) for an incidental take permit (permit) under the Endangered Species Act of 1973, as amended (ESA). The applicant requests a permit with a 5-year term that would authorize “take” of the threatened Olympia pocket gopher incidental to otherwise lawful land development in Thurston County, Washington. The application includes the applicant's draft habitat conservation plan (HCP), which describes the actions the applicant will implement to minimize and mitigate the impacts of incidental take caused by covered activities. The Service also announces the availability of a draft environmental assessment (EA) that has been prepared in response to the permit application in accordance with requirements of the National Environmental Policy Act (NEPA). We are making the permit application, including the draft HCP and the draft EA, available for public review and comment.
To ensure consideration, please submit written comments by December 28, 2015.
To request further information or submit written comments, please use one of the following methods, and note that your information request or comments are in reference to the “Meier HCP/EA”:
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Tim Romanski, Conservation Planning and Hydropower Branch Chief, Washington Fish and Wildlife Office (see
Section 9 of the ESA prohibits “take” of fish and wildlife species listed as endangered or threatened. Under the ESA, the term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct (16 U.S.C. 1532(19)). The term “harm,” as defined in our regulations, includes significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering (50 CFR 17.3). The term “harass” is defined in our regulations as an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering (50 CFR 17.3).
Under specified circumstances, the Service may issue permits that authorize take of federally listed species, provided the take is incidental to, but not the purpose of, an otherwise lawful activity. Regulations governing permits for endangered and threatened species are at 50 CFR 17.22 and 17.32, respectively. Section 10(a)(1)(B) of the Act contains provisions that authorize the Service to issue permits to non-Federal entities for the take of endangered and threatened species, provided the following criteria are met:
(1) The taking will be incidental;
(2) The applicant will prepare a conservation plan that, to the maximum extent practicable, minimize and mitigate the impact of such taking;
(3) The applicant will ensure that adequate funding for the plan will be provided;
(4) The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and
(5) The applicant will carry out any other measures that the Service may require as being necessary or appropriate for the purposes of the plan.
We have received an application from the Meier Group, LLC (applicant) for an incidental take permit pursuant to Section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (ESA). The applicant requests a permit with a 5-year term that would authorize “take” of the threatened Olympia pocket gopher (
The applicant proposes to develop an approximately 6.4-acre property in the City of Tumwater, Thurston County, Washington, over the course of the next 5 years. The proposed project would entail clearing most of the 6.4-acre property of trees and other vegetation, including the invasive non-native Scot's broom (
Approximately 2.7 acres of the 6.4-acre property is occupied by and provides habitat for the Olympia pocket gopher. Periodic mowing of the transmission line right-of-way keeps invasive vegetation controlled, which likely maintains habitat suitability for the pocket gopher. About 2.0 acres of the approximately 2.7 acres of potential pocket gopher habitat on the project site would be lost due to site preparation and construction activities under the proposed project. Olympia pocket gophers and their habitat would not be expected to persist in this area upon completion of the proposed project. Approximately 0.7 acre of the degraded grassland area beneath the transmission lines would remain undisturbed. Any pocket gophers in the remnant habitat patch may be able to survive for some period of time after project completion; however, the fragmentation, loss of foraging habitat, and reproductive isolation of remaining individuals makes long-term persistence of a viable population in this area unlikely.
The applicant's draft HCP identifies measures intended to minimize and mitigate for the incidental take of the covered species. The draft HCP's mitigation measures consist of a conservation program that includes dedication of an off-site 2.5-acre permanent conservation land area at a location known as Bush Prairie Farm, that would be managed for the benefit of the Olympia pocket gopher. The proposed HCP would establish a conservation easement on Bush Prairie Farm that removes the threat of future development on the conservation site, and provide funding to ensure that the conservation site is managed to maintain long-term habitat suitability for the covered species. The Bush Prairie Farm 2.5-acre conservation site is approximately 1,000 feet away from the only designated critical habitat for the Olympia pocket gopher. The conservation site is separated by a highway from the 676 acres of designated critical habitat that is located on the Olympia Regional Airport property. The conservation site is also adjacent to other sites proposed for long-term management for the listed species. Securing long-term protection and management of the proposed conservation site could expand priority conservation areas that may contribute to recovery of this species.
The Service proposes to issue the requested permit with a 5-year term based on the applicant's commitment to implement the draft HCP, if permit issuance criteria are met. Covered activities include construction, land development, and conservation of covered species. The area covered under the draft HCP consists of a project development site totaling 6.4 acres and a conservation site totaling 2.5 acres. Take would occur primarily on the already fragmented project development site and be mitigated for by managing a higher quality block of habitat for the covered species on the conservation site. A conservation easement with associated funding assurances would be executed by the applicant to ensure ongoing management of the conservation site.
The proposed issuance of a permit is a Federal action that triggers the need for compliance with the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
You may submit your comments and materials by one of the methods listed in the
All comments and materials we receive become part of the public record associated with this action. Before including your address, phone number, email address, or other personally identifiable information in your comments, you should be aware that your entire comment—including your personally identifiable information—may be made publicly available at any time. While you can ask us in your comment to withhold your personally identifiable information from public review, we cannot guarantee that we will be able to do so. 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. Comments and materials we receive, as well as supporting documentation we use in preparing the EA, will be available for public inspection by appointment, during normal business hours, at our Washington Fish and Wildlife Office (see
We will evaluate the permit application, associated documents, and any comments we receive, to determine whether the permit application meets the requirements of section 10(a)(1)(B) of the ESA. We will also evaluate whether issuance of the requested section 10(a)(1)(B) permit would comply with section 7 of the Act by conducting an intra-Service section 7 consultation on anticipated permit actions. After completion of the EA based on consideration of public comments, we will determine whether the proposed action warrants a finding of no significant impact or whether an environmental impact statement should be prepared. The final NEPA and permit determinations will not be completed until after the end of the 30-day comment period and will fully consider all comments received during the comment period. If we determine that all requirements are met, we will issue an incidental take permit under section 10(a)(1)(B) of the ESA to the applicants for the take of covered species, incidental to otherwise lawful covered activities.
We provide this notice in accordance with the requirements of section 10 of the Act (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (U.S. Fish and Wildlife Service) have sent an Information Collection Request (ICR) to OMB for review and approval. We summarize the ICR below and describe the nature of the collection and the estimated burden and cost. We 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.
You must submit comments on or before November 25, 2015.
Send your comments and suggestions on this information collection to the Desk Officer for the Department of the Interior at OMB-OIRA at (202) 395-5806 (fax) or
To request additional information about this ICR, contact Hope Grey at
We collect the information in conjunction with carrying out our responsibilities under the Federal Aid in Sport Fish Restoration Act (16 U.S.C. 777-777m), commonly referred to as the Dingell-Johnson Act, and the Federal Aid in Wildlife Restoration Act (16 U.S.C. 669-669i), commonly referred to as the Pittman-Robertson Act. Under these acts, as amended, we provide approximately $1 billion in grants annually to States for projects that support sport fish and wildlife management and restoration, including:
• Improvement of fish and wildlife habitats,
• Fishing and boating access,
• Fish stocking, and
• Hunting and fishing opportunities.
We also provide grants for aquatic education and hunter education, maintenance of completed projects, and research into problems affecting fish and wildlife resources. These projects help to ensure that the American people have adequate opportunities for fish and wildlife recreation.
We conduct the survey about every 5 years. The 2016 FHWAR will be the 12th conducted since 1955. We sponsor the survey at the States' request, which is made through the Association of Fish and Wildlife Agencies. We contract with the Census Bureau, which collects the information using computer-assisted telephone or in-person interviews. The Census Bureau will select a sample of sportspersons and wildlife watchers from a household screen and conduct three detailed interviews during the survey year. The survey collects information on the number of days of participation, species of animals sought, and expenditures for trips and equipment. Information on the characteristics of participants includes age, income, sex, education, race, and State of residence.
Federal and State agencies use information from the survey to make policy decisions related to fish and wildlife restoration and management. Participation patterns and trend information help identify present and future needs and demands. Land managing agencies use the data on expenditures and participation to assess the value of wildlife-related recreational uses of natural resources. Wildlife-related recreation expenditure information is used to estimate the economic impact on the economy and to support the dedication of tax revenues for fish and wildlife restoration programs.
We again invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. 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 OMB and us in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
Bureau of Indian Affairs, Interior.
Notice of submission to OMB.
In compliance with the Paperwork Reduction Act of 1995, the Bureau of Indian Affairs (BIA) is seeking comments on the renewal of Office of Management and Budget (OMB) approval for the collection of information for the Tribal Reassumption of Jurisdiction over Child Custody Proceedings, authorized by OMB Control Number 1076-0112. This information collection expires November 30, 2015.
Submit comments on or before November 25, 2015.
You may submit comments on the information collection to the Desk Officer for the Department of the Interior at the Office of Management and Budget, by fax to (202) 395-5806 or you may send an email to:
Evangeline Campbell, (202) 513-7621. You may review the information collection request online at
The BIA is seeking to renew the information collection conducted under 25 CFR 13, Tribal Reassumption of Jurisdiction over Child Custody Proceedings, which prescribes procedures by which an Indian tribe that occupies a reservation over which a State asserts any jurisdiction pursuant to Federal law may reassume jurisdiction over Indian child proceedings as authorized by the Indian Child Welfare Act, Public Law 95-608, 92 Stat. 3069, 25 U.S.C. 1918.
On August 17, 2015, BIA published a notice announcing the renewal of this information collection and provided a 60-day comment period in the
The BIA requests your comments on this collection concerning: (a) The necessity of this information collection for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) The accuracy of the agency's estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used; (c) Ways we could enhance the quality, utility, and clarity of the information to be collected; and (d) Ways we could minimize the burden of the collection of the information on the respondents.
Please note that an agency may not conduct or sponsor, and an individual need not respond to, a collection of information unless it has a valid OMB Control Number.
It is our policy to make all comments available to the public for review at the location listed in the
Bureau of Land Management, Interior.
Notice of Filing of Plats of Survey; Arizona.
The plats of survey of the described lands were officially filed in the Arizona State Office, Bureau of Land Management, Phoenix, Arizona, on dates indicated.
The plat representing the dependent resurvey and subdivision of section 4, Township 22 North, Range 6 East, accepted September 28, 2015, and officially filed September 30, 2015, for Group 1123, Arizona.
This plat was prepared at the request of the United States Forest Service.
The plat, in seven sheets, representing the dependent resurvey, subdivision of certain sections, metes-and-bounds surveys in section 27 and 35, and recovery of certain corners, Township 23 North, Range 6 East, accepted September 28, 2015, and officially filed September 30, 2015, for Group 1123, Arizona.
This plat was prepared at the request of the United States Forest Service.
The plat representing the dependent resurvey and subdivision of section 18, Township 23 North, Range 7 East, accepted September 28, 2015, and officially filed September 30, 2015, for Group 1123, Arizona.
This plat was prepared at the request of the United States Forest Service.
The plat representing the dependent resurvey, corrective resurvey, independent resurvey and subdivision of certain sections, Township 21 North, Range 30 East, accepted September 29, 2015, and officially filed September 30, 2015, for Group 957, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs.
The plat representing the dependent resurvey of a portion of the exterior boundary of the Gila River Indian Reservation in section 5, Township 5 South, Range 8 East, accepted April 7, 2015, and officially filed April 8, 2015, for Group 1135, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs.
A person or party who wishes to protest against any of these surveys must file a written protest with the Arizona 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 to the State Director, or the statement of reasons must be filed with the State Director within thirty (30) days after the protest is filed.
These plats will be available for inspection in the Arizona State Office, Bureau of Land Management, One North Central Avenue, Suite 800, Phoenix, Arizona 85004-4427. 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.
Bureau of Land Management, Interior.
Notice of intent.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), the Federal Land Policy and Management Act of 1976, as amended (FLPMA), and the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM), as lead agency, through the Buffalo Field Office, Buffalo, Wyoming, intends to prepare an Environmental Impact Statement (EIS) for EOG Resources Inc.'s (EOG's) proposed Greater Crossbow Oil and Gas Project (Project). The proposal area includes Federal lands administered by the BLM's Buffalo and Casper Field Offices and the U.S. Forest Service's (USFS) Thunder Basin National Grasslands. This notice initiates the public scoping process for the EIS and potential land use plan amendments. The purpose of the public scoping process is to seek input and identify issues regarding the Project.
Comments may be submitted in writing until December 10, 2015. In order to be considered in the Draft EIS, all comments must be received prior to the close of the 45-day scoping period or 15 days after the last public meeting, whichever is later. The BLM will provide additional opportunities for public participation as appropriate. The dates and locations of any scoping meetings will be announced at least 15 days in advance through the local news media, newspapers, and the BLM Web site at:
You may submit written comments by any of the following methods:
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Thomas Bills, NEPA Coordinator, telephone: 307-684-1133; address: 1425 Fort Street, Buffalo, Wyoming 82834; email:
EOG proposes to develop 1,500 oil and natural gas wells on 100 multi-well
• Use directional, vertical, horizontal, and other drilling techniques;
• Develop area infrastructure to support oil and gas production, including well pads, roads, pipelines, power lines, compressor and electrical substations, and support facilities, such as water supply wells and water disposal facilities;
• Conduct year-round drilling where seasonal raptor restrictions may otherwise apply.
Surface disturbance associated with the proposal is estimated to include 7,000 acres of initial surface disturbance for the construction of new roads, well pads, pipelines, and support facilities, of which approximately 3,700 acres of surface distrubance may remain for the life of the project.
The proposal area lies between the towns of Wright and Bill, primarily west of Wyoming Highway 59, and includes approximately 120,000 acres. The USFS manages about 5,700 surface acres, or 5 percent of the Project area surface. The remainder of surface area affected by the proposal is privately owned (88 percent) or held by the State of Wyoming (7 percent). The BLM does not manage any of the surface area potentially affected by the Project. The proposal area includes about 74,000 acres (62 percent of the area) of BLM-administered Federal mineral estate. The remainder of the mineral estate in the Project area is privately owned (30 percent) or held by the State of Wyoming (8 percent). The BLM has identified the following preliminary issues: Greater sage-grouse and raptor conservation, especially ferruginous hawks; year-round drilling where seasonal raptor restrictions may otherwise apply; potential conflicts with coal mining and other area resource uses; air quality; ground and surface waters and water injection sites affected by the proposal; area transportation; the level of anticipated development of oil and gas resources in the planning area; and, the identification of opportunities to apply mitigation hierarchy strategies for on-site, regional, and compensatory mitigation, and, as appropriate, landscape-level conservation and management actions to achieve resource objectives.
Authorization of this proposal may require amendment of the Casper Field Office, Casper Resource Management Plan (RMP). Similarly, the USFS, as cooperating agency, may use the EIS analysis to support preparation of a land use plan amendment for the Thunder Basin National Grassland, Land and Resource Management Plan (LRMP), if appropriate. By this notice, the BLM is complying with the requirements in 43 CFR 1610.2(c) to notify the public of potential amendments to land use plans, based on the findings of the EIS for the Project. If land use plan amendments are necessary or appropriate, the BLM will integrate the land-use planning processes with the NEPA process for this project.
The BLM is announcing the beginning of a scoping process to solicit public comments and identify issues associated with the Public. The BLM seeks resource information and data for public land values (
In connection with its evaluation of any authorizations and actions proposed in the EIS, the BLM will determine if those actions conform to the decisions in the current and proposed land use plans for the Project area. Any proposed actions that would change the scope of resource uses, terms and conditions, and decisions of these plans may require amendment of the affected plan(s). If the BLM determines that a plan amendment is necessary, it would conduct the appropriate analysis simultaneously with preparation of the EIS for the Project. The planning criteria for any necessary plan amendment will follow that found in the affected plan(s).
To provide the public with an opportunity to review the proposal and associated information, as well as any proposed plan amendments, the BLM will host public meetings on or before November 25, 2015. The BLM will notify the public of the precise date of such meetings and any other opportunities for the public to be involved in the process at least 15 days prior to the event via news release to the media, individual mailings, and postings on the BLM's Project Web site.
The BLM will use and coordinate the NEPA commenting process to help fulfill the public involvement process under section 106 of the National Historic Preservation Act (NHPA) (16 U.S.C. 470f), as provided for in 36 CFR 800.2(d)(3). Information about historic and cultural resources in the area potentially affected by the Project will assist the BLM in identifying and evaluating impacts to such resources in the context of both NEPA and section 106 of the NHPA. Native American tribal consultations will be conducted in accordance with applicable policy, and tribal concerns will be given due consideration. Federal, State, and local agencies, along with other stakeholders that may be interested or affected by the BLM's decisions on this proposal, are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate as a cooperating agency.
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 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.
40 CFR 1501.7, 43 CFR 1610.2.
Bureau of Land Management, Interior.
Notice of filing of plats of survey; Minnesota.
The Bureau of Land Management (BLM) will file the plats of survey of the lands described below in the BLM-Eastern States Office, Washington, DC, 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 Survey. 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,
Survey in the Fifth Principal Meridian requested by the Bureau of Indian Affairs. Surveys in the Fourth Principal Meridian were requested by the U.S. Forest Service.
The lands surveyed are:
The plat of survey represents the dependent resurvey of the south boundary of Township 64 North, Range 11 West, of the Fourth Principal Meridian, in the State of Minnesota, and was accepted September 28, 2015.
The plat of survey represents the dependent resurvey of a portion of the range line between Townships 63 North, Ranges 10 and 11 West, and a portion of the south exterior boundary of Township 64 North, Range 10 West, of the Fourth Principal Meridian, in the State of Minnesota, and was accepted September 28, 2015.
The plat of survey represents the corrective dependent resurvey of a portion of the subdivisional lines and the corrective survey of the subdivision of sections 22-27, and 36, Township 144 North, Range 39 West, and the corrective dependent resurvey of a portion of the east boundary and the corrective survey of the subdivision of section 1, Township 143 North, Range 39 West, of the Fifth Principal Meridian, in the State of Minnesota, and was accepted September 28, 2015.
We will place a copy of the plat we described in the open files. It will be available to the public as a matter of information.
If BLM receives a protest against this survey, as shown on the plat, 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 plat until the day after we have accepted or dismissed all protests and they have become final, including decisions on appeals.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 10) of the presiding administrative law judge (“ALJ”) granting complainant's motion to withdraw the complaint and terminate the investigation in its entirety.
Panyin A. Hughes, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-3042. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted Inv. No. 337-TA-938 on December 10, 2014, based on a complaint filed by PPC Broadband, Inc. of East Syracuse, New York (“PPC”). 79 FR 73336-37 (Dec. 10, 2014). The complaint alleges violations of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain coaxial cable connectors and components thereof and products containing the same by reason of infringement of several claims of United States Patent No. 8,801,448. The notice of investigation named Corning Optical Communications RF, LLC of Glendale, Arizona (Corning) as respondent. The Office of Unfair Import Investigations is a party to this investigation.
On September 22, 2015, PPC moved to withdraw the complaint and terminate the investigation in its entirety. Corning and the Commission investigative attorney do not oppose the motion.
On September 25, 2015, the ALJ issued the subject ID, granting the motion. The ALJ found that the motion complied with the requirements of Commission Rule 210.21(a)(1) (19 CFR 210.21(a)(1)) and further found that no extraordinary circumstances prohibited granting the motion. None of the parties petitioned for review of the ID.
The Commission has determined not to review the ID.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Notice.
The Department of Labor (DOL) is submitting the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) titled, “Acquisition and Sale of Trust Real Estate Investment Trust Shares by Individual Account Plans Sponsored by Trust Real Estate Investment Trusts,” 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 25, 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:
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 Acquisition and Sale of Trust Real Estate Investment Trust Shares by Individual Account Plans Sponsored by Trust Real Estate Investment Trusts information collection. Prohibited Transaction Class Exemption 2004-07 permits an individual account pension plan sponsored by a real estate investment trust (REIT) that is organized as a business trust under State law (Trust REIT), or by its affiliates, to purchase, hold and sell publicly traded shares of beneficial interest in the Trust REIT. The relief also covers contributions in kind of REIT shares. Internal Revenue Code of 1986 (Code) section 4975 and Employee Retirement Income Security Act of 1974 (ERISA) section 406 would otherwise prohibit such purchases, holdings, and sales.
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,
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning its proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified in the 1,3-Butadiene (BD) Standard (29 CFR 1910.1051).
Comments must be submitted (postmarked, sent, or received) by December 28, 2015.
Theda Kenney or Todd Owen, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N-3609, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
The BD Standard requires employers to monitor employee exposure to 1,3-Butadiene; develop and maintain compliance and exposure goal programs if employee exposures to BD are above the Standard's permissible exposure limits or action level; label respirator filter elements to indicate the date and time it is first installed on the respirator; establish medical surveillance programs to monitor employee health, and to provide employees with information about their exposures and the health effects of exposure to BD.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
OSHA is requesting that the Office of Management and Budget (OMB) extend the approval of the collection of information (paperwork) requirements contained in the 1,3 Butadiene Standard (29 CFR 1910.1051). The Agency is requesting a one hour adjustment (from 916 hours to 915 burden hours). The adjustment is a result of the elimination of the federal access from the burden hour calculation from this ICR.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693-2350, (TTY (877) 889-5627).
Comments and submissions are posted without change at
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act (44 U.S.C. 3506
Occupational Safety and Health Administration (OSHA), Labor.
Announcement of a meeting of WPAC.
WPAC will meet November 10, 2015, in Washington, DC.
WPAC will meet Tuesday, November 10, 2015, in Washington, DC. WPAC meetings are open to the public.
The tentative agenda of the WPAC meeting includes:
Remarks from the Assistant Secretary of Labor for Occupational Safety and Health (OSHA);
Remarks from the Director of the Directorate of Whistleblower Protection Programs;
Presentation on State Plan issues;
Public comments;
Work Group discussions/presentations; and,
Old business.
OSHA transcribes WPAC meetings and prepares detailed minutes of the meetings. OSHA places the meeting transcripts and minutes in the public record of the WPAC meeting. The public record also includes Work Group reports, speaker presentations, comments and other materials submitted to WPAC.
The Best Practices and Corporate Culture Work Group will meet on November 9, 2015. This work group meeting will be open to the public. The purpose of the work group is to provide recommendations to the full WPAC
For additional information on WPAC work group meetings or participating in them, please contact Mr. Rosa or look on the WPAC page on OSHA's Web page at
Individuals needing special accommodations to attend the WPAC meeting should contact Ms. Jameson as well.
Because of security-related procedures, submissions by regular mail may experience significant delays. For information about security procedures for submitting materials by hand delivery, express mail, and messenger or courier service, please contact the OSHA Docket Office (see
• The amount of time requested to speak;
• The interest you represent (
• A brief outline of your presentation.
The WPAC Chair may grant requests to address WPAC as time and circumstances permit.
OSHA also places in the public docket the meeting transcript, meeting minutes, documents presented at the WPAC meeting, and other documents pertaining to the WPAC meeting. These documents are available online at
Electronic copies of this
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this notice under the authority granted by 5 U.S.C. App. 2, 41 CFR part 102-3, chapter 1600 of Department of Labor Management Series 3 (Aug. 15, 2013), 77 FR 3912 (Jan. 25, 2012), and the Secretary of Labor's authority to administer the whistleblower provisions found in 29 U.S.C. 660(c), 49 U.S.C. 31105, 15 U.S.C. 2651, 46 U.S.C. 80507, 42 U.S.C. 300j-9(i), 33 U.S.C. 1367, 15 U.S.C. 2622, 42 U.S.C. 6971, 42 U.S.C. 7622, 42 U.S.C. 9610, 42 U.S.C. 5851, 49 U.S.C. 42121, 18 U.S.C. 1514A, 49 U.S.C. 60129, 49 U.S.C. 20109, 6 U.S.C. 1142, 15 U.S.C. 2087, 29 U.S.C. 218c, 12 U.S.C. 5567, 46 U.S.C. 2114, 21 U.S.C. 399d, and 49 U.S.C. 30171.
Legal Services Corporation.
Announcement of intention to make FY 2016 Competitive Grant Awards.
The Legal Services Corporation (LSC) hereby announces its intention to award grants and contracts to provide economical and effective delivery of high quality civil legal services to eligible low-income clients, beginning January 1, 2016.
All comments and recommendations must be received on or before the close of business on November 25, 2015.
Legal Services Corporation—Competitive Grants, Legal Services Corporation; 3333 K Street NW., Third Floor; Washington, DC 20007.
Reginald Haley, Office of Program Performance, at (202) 295-1545, or
Pursuant to LSC's announcement of funding availability on March 27, 2015, 80 FR 16461, and Grant Renewal applications due beginning June 1, 2015, LSC intends to award funds to provide civil legal services in the indicated service areas. Applicants for each service area are listed below. The amounts below reflect the funding amounts for 2015 grant awards to each service area. These amounts will change based on the 2016 census adjustment and the final FY2016 appropriation.
LSC will post all updates and/or changes to this notice at
These grants will be awarded under the authority conferred on LSC by Section 1006(a)(1) of the Legal Services Corporation Act, 42 U.S.C. 2996e(a)(1). Awards will be made so that each service area is served, although no listed organization is guaranteed an award or contract. Grants will become effective and grant funds will be distributed on or about January 1, 2016.
This notice is issued pursuant to 42 U.S.C. 2996g(e). Comments and recommendations concerning potential grantees are invited, and should be delivered to LSC within thirty (30) days from the date of publication of this notice.
Office of Management and Budget, Executive Office of the President.
Notice of availability and request for comments.
The Office of Management and Budget (OMB) requests comments on its Draft 2015 Report to Congress on
OMB requests that comments be submitted electronically to OMB by December 21, 2015 through
To ensure consideration of comments as OMB prepares this Draft Report for submission to Congress, comments must be in writing and received by December 21, 2015.
Submit comments by one of the following methods:
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All comments and recommendations submitted in response to this notice will be made available to the public, including by posting them on OMB's Web site. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. The
Congress directed the Office of Management and Budget (OMB) to prepare an annual Report to Congress on the Costs and Benefits of Federal Regulations. Specifically, Section 624 of the FY 2001 Treasury and General Government Appropriations Act, also known as the “Regulatory Right-to-Know Act,” (the Act) requires OMB to submit a report on the costs and benefits of Federal regulations together with recommendations for reform. The Act states that the report should contain estimates of the costs and benefits of regulations in the aggregate, by agency and agency program, and by major rule, as well as an analysis of impacts of Federal regulation on State, local, and tribal governments, small businesses, wages, and economic growth. The Act also states that the report should be subject to notice and comment and peer review.
National Aeronautics and Space Administration (NASA).
Notice of Centennial Challenges 2016 Sample Return Robot (SRR) Challenge.
This notice is issued in accordance with 51 U.S.C. 20144(c). The Sample Return Robot (SRR) Challenge is scheduled and teams that wish to compete may now register. Centennial Challenges is a program of prize competitions to stimulate innovation in technologies of interest and value to NASA and the nation. The 2016 SRR Challenge is a prize competition designed to encourage development of new technologies or application of existing technologies in unique ways to autonomously collect and retrieve samples using robotics. NASA is providing the prize purse and Worcester Polytechnic Institute (WPI) is conducting the challenge.
2016 SRR Challenge for Level 1 will be held June 6-11, 2016; Level 2 will be held September 1-5, 2016.
2016 SRR Challenge will be conducted at Worcester Polytechnic Institute near Worcester, Massachusetts.
To register for or get additional information regarding the 2016 SRR Challenge, please visit:
For general information on the NASA Centennial Challenges Program please visit:
Autonomous robot rovers will seek out samples and return them to a designated point in a set time period. Samples will be randomly placed throughout the roving area. They may be placed close to obstacles, both movable and immovable. Robots will be required to navigate over unknown terrain, around obstacles, and in varied lighting conditions to identify, retrieve, and return these samples. Winners will be determined based on the number of samples returned to the designated collection point as well as the value assigned to the samples.
The total Sample Return Robot Challenge purse is $1,500,000 (one million five hundred thousand U.S. dollars). Prizes will be offered for entries that meet specific requirements detailed in the Rules.
To be eligible to win a prize, competitors must;
(1) Register and comply with all requirements in the rules.
(2) In the case of a private entity, shall be incorporated in and maintain a primary place of business in the United States, and in the case of an individual, whether participating singly or in a group, shall be a citizen or permanent resident of the United States.
(3) Not be a Federal entity or Federal employee acting within the scope of their employment.
The complete rules and team agreement for the 2016 SRR Challenge can be found at:
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 30 calendar days from the date of this publication.
Interested persons are invited to submit written comments regarding the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 7th Street NW., Washington DC 20543. Attention: Desk Officer for NASA.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Frances Teel, NASA PRA Clearance Officer, NASA Headquarters, 300 E Street SW., Mail Code JF000, Washington, DC 20546, or
NASA promotes activities to demonstrate innovative uses and practical benefits of NASA Earth science data, scientific knowledge, and technology. NASA's Applied Sciences Program established the DEVELOP National Program to research environmental management and public policy issues at the state and local level. Under the guidance of NASA and partner organization science advisors, DEVELOP enables participants to lead research projects that utilize NASA Earth observations to address community concerns and public policy issues. Through teams, DEVELOP participants gain experience by (1) utilizing NASA's Earth Science satellite and airborne resources, to include remote sensing and geographic information systems (GIS), and (2) communicating research results. DEVELOP projects serve the global community and extend NASA Earth Science research and technology to benefit society. A focus on both professional and personal development is central to DEVELOP's ten week sessions, which are conducted annually during the spring, summer, and fall.
The DEVELOP research opportunity is available to individuals 18 years and older and includes transitioning career professionals (including veterans of the Armed Forces), recent college/university graduates, and currently enrolled students. Information is collected through an online process from individuals interested in participating in the NASA DEVELOP Program for a ten week session. Information collected from individuals includes a completed application, academic transcript, resume, and two letters of recommendation references per applicant.
With the growing societal role of science and technology in today's global workplace, DEVELOP is fostering an adept corps of tomorrow's scientists and leaders.
Electronic.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “Physical Protection of Category 1 and Category 2 Quantities of Radioactive Material.”
Submit comments by November 25, 2015.
Submit comments directly to the OMB reviewer at: Vlad Dorjets, Desk Officer, Office of Information and Regulatory Affairs (3150-0214) NEOB-10202, Office of Management and Budget, Washington, DC 20503; telephone: 202-395-7315, email:
Tremaine Donnell, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6258; email:
Please refer to Docket ID NRC-2015-0033 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, “Physical Protection of Category 1 and Category 2 Quantities of Radioactive Material.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Regulatory guide; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing Revision 1 of Regulatory Guide (RG) 1.212, “Sizing of Large Lead-Acid Storage Batteries.” This RG endorses, with certain clarifications, the Institute of Electrical and Electronic Engineers (IEEE) Standard 485-2010, “IEEE Recommended Practice for Sizing Lead-Acid Batteries for Stationary Applications.” This RG describes methods acceptable to the NRC for complying with the design requirements for vented lead-acid batteries used in stationary applications under full float operation for nuclear power plants.
Please refer to Docket ID NRC-2015-0099 when contacting the NRC about the availability of information regarding this document. You may obtain publically-available information related to this document, using the following methods:
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Regulatory guides are not copyrighted, and NRC approval is not required to reproduce them.
Liliana Ramadan, email,
The NRC is issuing a revision to an existing guide in the NRC's “Regulatory Guide” series. This series was developed to describe and make available to the public information regarding methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, techniques that the staff uses in evaluating specific issues or postulated events, and data that the staff needs in its review of applications for permits and licenses. Revision 1 of RG 1.212 was issued with a temporary identification as Draft Regulatory Guide, DG-1311. This RG is being updated to provide guidance to applicants and licensees for defining the direct current load and size of vented lead acid batteries for full float stationary applications to support nuclear power plant operations.
DG-1313 was published in the
This RG is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.
This RG provides guidance to applicants and licensees for defining the direct current load and size of lead-acid batteries needed to supply the defined load for full float stationary applications to support nuclear power plant operations. This RG does not constitute backfitting as defined in § 50.109 of title 10 of the
This RG may be applied to applications for operating licenses and combined licenses docketed by the NRC as of the date of issuance of the RG, as well as future applications for operating licenses and combined licenses submitted after the issuance of the RG. Such action does not constitute backfitting as defined in 10 CFR 50.109(a)(1) and is not otherwise inconsistent with the applicable issue finality provision in 10 CFR part 52, inasmuch as such applicants or potential applicants, with exceptions not applicable here, are not within the scope of entities protected by the Backfit Rule or the relevant issue finality provisions in part 52.
For the Nuclear Regulatory Commission.
In accordance with the purposes of sections 29 and 182b of the Atomic Energy Act (42 U.S.C. 2039, 2232b), the Advisory Committee on Reactor Safeguards (ACRS) will hold a meeting
Procedures for the conduct of and participation in ACRS meetings were published in the
Thirty-five hard copies of each presentation or handout should be provided 30 minutes before the meeting. In addition, one electronic copy of each presentation should be emailed to the Cognizant ACRS Staff one day before meeting. If an electronic copy cannot be provided within this timeframe, presenters should provide the Cognizant ACRS Staff with a CD containing each presentation at least 30 minutes before the meeting.
In accordance with subsection 10(d) of Public Law 92-463 and 5 U.S.C. 552b(c), certain portions of the November 6th meeting may be closed, as specifically noted above. Use of still, motion picture, and television cameras during the meeting may be limited to selected portions of the meeting as determined by the Chairman. Electronic recordings will be permitted only during the open portions of the meeting.
ACRS meeting agendas, meeting transcripts, and letter reports are available through the NRC Public Document Room at
Video teleconferencing service is available for observing open sessions of ACRS meetings. Those wishing to use this service should contact Mr. Theron Brown, ACRS Audio Visual Technician (301-415-8066), between 7:30 a.m. and 3:45 p.m. (ET), at least 10 days before the meeting to ensure the availability of this service. Individuals or organizations requesting this service will be responsible for telephone line charges and for providing the equipment and facilities that they use to establish the video teleconferencing link. The availability of video teleconferencing services is not guaranteed.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the Postal Service's intention to change rates of general applicability for competitive products. This notice
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On October 16, 2015, the Postal Service filed notice with the Commission concerning changes in rates of general applicability for competitive products.
Attached to the Notice is Governors' Decision No. 15-1, which evaluates the new prices and classification changes in accordance with 39 U.S.C. 3632, 3633, and 39 CFR 3015.2.
The attachment to Governors' Decision No. 15-1 sets forth the price changes and includes draft Mail Classification Schedule (MCS) language for competitive products of general applicability. Selected highlights of the price and classification changes follow.
Further details of these changes may be found in the attachment to Governors' Decision No. 15-1, which is included as part of the Notice and contains proposed changes to the MCS in legislative format.
The Notice also includes three additional attachments:
• A redacted table showing FY 2016 projected volumes, revenues, attributable costs, contribution, and cost coverage for each product, assuming implementation of the new prices on January 17, 2016.
• A redacted table showing FY 2016 projected volumes, revenues, attributable costs, contribution, and cost coverage for each product, assuming a hypothetical implementation of the new prices on October 1, 2015.
• An application for non-public treatment of the attributable costs, contribution, and cost coverage data in the unredacted version of the annex to Governors' Decision No. 15-1, as well as the supporting materials for the data.
The table referenced above shows that the share of institutional cost generated by competitive products, assuming implementation of new prices on January 17, 2016, is expected to be 15.8 percent.
Pursuant to 39 U.S.C. 505, Tracy N. Ferguson is appointed to serve as Public Representative to represent the interests of the general public in this docket.
1. The Commission establishes Docket No. CP2016-9 to provide interested persons an opportunity to express views and offer comments on whether the planned changes are consistent with 39 U.S.C. 3632, 3633, 3642, 39 CFR part 3015, and 39 CFR 3020 subparts B and E.
2. Comments are due no later than October 29, 2015.
3. The Commission appoints Tracy N. Ferguson to serve as Public Representative to represent the interests of the general public in this proceeding.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 6.18 relating to disaster recovery. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Rule 6.18 relating to disaster recovery. Specifically, the Exchange proposes to update Rule 6.18 to further describe the Exchange's back-up systems, the circumstances under which they may be used, and the testing that the Exchange may conduct to ensure the availability, functionality and performance of such systems. Additionally, the Exchange proposes certain updates to Rule 6.18 in response to new disaster recovery regulations and business resumption standards recently adopted by the Securities and Exchange Commission (“SEC” or “Commission”) as promulgated in Regulation Systems Compliance and Integrity (“Regulation SCI”) under the Act.
The Exchange adopted Rule 6.18 in 2006 for the limited purpose of providing alternative means of operation in the event of a physical disaster. In particular, Rule 6.18, as originally adopted, was intended to deal with trading floor closures, providing for the operation of a “Disaster Recovery Facility” (“DRF”) in the event that a disaster or other unusual circumstance rendered the trading floor inoperable.
In 2012, Rule 6.18 was amended in connection with the Exchange's relocation of its primary data center to the East Coast and the consequent conversion of its former primary data center to a back-up data center in Chicago.
In addition to adding greater detail to the Exchange's disaster recovery rules in Rule 6.18, the Exchange proposes to make updates to Rule 6.18 to harmonize its disaster recovery rules with the newly implemented disaster recovery-related regulatory imperatives of Regulation SCI. Regulation SCI supersedes and replaces the SEC's voluntary Automation Review Policy (“ARP”), established by the Commission's two policy statements each titled “Automated Systems of Self-Regulatory Organizations,” issued in 1989 and 1991, expanding existing practices and making them mandatory.
The Exchange proposes to make changes to Rule 6.18 to provide additional details regarding the Exchange's back-up trading systems and business continuity and disaster recovery plans activation and testing. As discussed above, the Exchange also seeks to update its disaster recovery rules to ensure consistency with Regulation SCI.
Current Rule 6.18 is divided into five sections, (a) through (e). Rule 6.18(a) authorizes the Exchange to maintain a back-up data center to preserve the Exchange's ability to trade options in the event the Exchange's primary data center becomes inoperable or otherwise unavailable for use. Rule 6.18(a) also authorizes the Exchange to operate in a screen-based only environment using a floorless configuration in the event that the trading floor becomes inoperable. Rule 6.18(b) describes the notice that must be given prior to commencing trading on back-up data center systems. Rule 6.18(c) describes the rules that would be in effect if the Exchange were to switch its trading operations to the back-up data center and the rules that would be suspended if the Exchange were to operate in a screen-based only environment using a floorless configuration in the event that the trading floor becomes inoperable. Rule 6.18(d), prescribes that TPHs are required to take appropriate actions as instructed by the Exchange to accommodate the Exchange's ability to trade options via the back-up data center. Finally, current Rule 6.18(e) provides that nothing in 6.18 precludes the Exchange from entering into agreements to trade options elsewhere in accordance with Rule 6.16 (Back-up Trading Arrangements) in the event that the Exchange's trading floor is rendered inoperable.
The Exchange proposes to make rule changes to Rule 6.18 that would leave the current rule largely intact, but reorganized with detail added to each section of the current rule. Under proposed Rule 6.18(a) (General), rather than explaining the Exchange's back-up data center and alternative disaster-related trading configurations in the introductory section, the Exchange would adopt a general statement regarding the purpose of its disaster recovery rules, providing that the Exchange maintains business continuity and disaster recovery plans that may be effected in the interests of the continued operation of fair and orderly markets in the event of a systems failure, disaster, or other unusual circumstances that might threaten the ability to conduct business on the Exchange. The content of current Rule 6.18(a) would be moved from the general section of Rule 6.18(a) to proposed Rule 6.18(b) regarding the Exchange's back-up data center.
Proposed Rule 6.18(b) (Back-up Data Center), would mirror current Rule 6.18(a), but would include a definitive statement that the Exchange maintains a back-up data center in order to preserve the Exchange's ability to conduct business in the event the Exchange's primary data center becomes inoperable or otherwise unavailable for use, rather than providing that the Exchange may maintain such back-up facilities. The Exchange also proposes to change the text of current Rule 6.18(a) in proposed Rule 6.18(b) to provide that the Exchange maintains a back-up data center in order to preserve the Exchange's ability to conduct business in the event the Exchange's primary data center becomes inoperable or otherwise unavailable for use, rather than to preserve only the Exchange's ability to trade options. This proposed rule change reflects the fact that the Exchange is engaged in business activities other than just the trading of options, including, but not limited to providing market data services and conducting regulatory functions.
Whereas the Exchange's current rules provide that the Exchange may determine to switch operations from the primary data center to the back-up data
Proposed Rule 6.18(b)(i) (Back-up Data Center Functionality), would make clear the functional and performance standards that the back-up data center must be reasonably designed to achieve. Specifically, proposed Rule 6.18(b)(i) would provide that the Exchange maintains a back-up data center that the Exchange has determined is reasonably designed to achieve prompt resumption of systems in [sic] manner consistent with the Exchange's obligations under Regulation SCI.
Proposed Rule 6.18(b)(ii) (Notice), would be the same as current Rule 6.18(b) and provide that prior to commencing trading on the back-up data center, the Exchange shall announce publicly the classes that will be available for trading. Proposed Rule 6.18(b)(iii) (Applicable Rules) would be the same as current Rule 6.18(c) and provide that the same rules that apply to trading using primary data center systems would be applicable to trading on back-up data center systems. The applicable rule exceptions with respect to the suspension of open outcry trading on the floor, however, would be removed from proposed Rule 6.18(b)(iii) and relocated to proposed Rule 6.18(c) (Loss of Trading Floor). Accordingly, proposed Rule 6.18(b)(iii) would provide that in the event the primary data center becomes inoperable, trading will continue using the back-up data center and all trading rules will remain in effect. Consistent with current Rule 6.18(c), the proposed rule would also contain the provisions that only conduct permissible pursuant to trading rules that are in force shall be allowed via the back-up data center and that all non-trading rules of the Exchange shall continue to apply.
Proposed Rule 6.18(b)(iv) (Trading Permit Holder Participation) regarding testing of the Exchange's back-up data center would contain provisions similar to current Rule 6.18(d) (Trading Permit Holder Preparations), but add subparagraphs to more clearly articulate the Exchange's authority to conduct testing of its back-up data center systems. Thus, similar to current Rule 6.18(d), proposed Rule 6.18(b)(iv) would provide that TPHs are required to take appropriate actions as instructed by the Exchange to accommodate the Exchange's ability to trade options via the back-up data center. Similar to the proposed changes to the text of current Rule 6.18(a) with respect to the purpose for which the Exchange maintains a back-up data center, for the reasons discussed above, the Exchange also proposes changing the rule text in proposed Rule 6.18(b)(iv) to provide that TPHs are required to take appropriate actions as instructed by the Exchange to accommodate the Exchange's ability to conduct business via the back-up data center, rather than solely to accommodate the Exchange's ability to conduct business [sic]. Under the proposed rule change, the title of current Rule 6.18(d) (Trading Permit Holder Preparations) would also be changed in proposed Rule 6.18(b)(iv) (Trading Permit Holder Participation) to better describe the purpose of the rule provisions.
Subsections (A) through (C) of proposed Rule 6.18(b)(iv) are designed to harmonize the Exchange's back-up data center testing rules with certain provisions of Regulation SCI. Under proposed Rule 6.18(b)(iv)(A) (Designated BCP/DR Participants), the Exchange shall designate those Trading Permit Holders that the Exchange determines are, as a whole, necessary for the maintenance of fair and orderly markets in the event of the activation of the Exchange's business continuity and disaster recovery plans (“Designated BCP/DR Participants”). Under proposed Rule 6.18(b)(iv)(A)(1), Designated BCP/DR Participants will be identified based on criteria determined by the Exchange and announced via Regulatory Circular, which may include whether the Trading Permit Holder (“TPH”) is an appointed Designated Primary Market-Maker (“DPM”), Lead Market-Maker (“LMM”) or Market-Maker in a class and the quality of markets provided by the DPM, LMM, or Market-Maker,
The Exchange has attempted to model the provisions of proposed Rule 6.18(b)(iv)(A) based on provisions of Regulation SCI, which require the Exchange to establish standards for the designation of those members or participants that the Exchange reasonably determines are, taken as a whole, the minimum number of members or participants necessary for the maintenance of fair and orderly markets in the event of the activation of its business continuity and disaster recovery plans.
Proposed Rule 6.18(b)(iv)(C) (Business Continuity and Disaster Recovery Plans Testing), would provide that The [sic] Exchange shall require Designated BCP/DR Participants and may require other market participants to participate in scheduled business continuity and disaster recovery plans tests in the manner and frequency prescribed by the Exchange. Proposed Rule 6.18(b)(iv)(C) would set forth the Exchange's authority to conduct testing of business continuity and disaster recovery plans and obtain assistance from Designated BCP/DR Participants and other market participants in conducting such tests. The Exchange notes that the provisions of proposed Rule 6.18(b)(iv)(C) are consistent with the Exchange's current rules
Proposed Rule 6.18(c) (Loss of Trading Floor), would be substantially similar to provisions in current Rule 6.18(a) (General), regarding loss of the trading floor, which would be removed from proposed Rule 6.18(b) (Back-up Data Center) and more appropriately placed in a separate section regarding the Exchange's trading floor facilities. Under proposed Rule 6.18(c), if the Exchange trading floor were to become inoperable, the Exchange would have the authority to continue to operate in a screen-based only environment using a floorless configuration of the Hybrid Trading System located in the primary data center that is operational while the trading floor is inoperable. The Exchange would operate using this configuration only until the Exchange's trading floor facility is operational and open outcry trading would not be available in the event the trading floor becomes inoperable, except in accordance with Rule 6.16 (Back-up Trading Arrangements), as applicable.
Proposed Rule 6.18(c)(i) (Applicable Rules), would mirror current Rule 6.18(c) (Applicable Rules), except that the current rule would be updated in proposed Rule 6.18(c)(i) to include additional rules pertaining to open outcry trading, including, but not limited to Rule 6.12A (Public Automated Routing System (PAR)) and Rule 7.12 (PAR Official). Thus, under proposed Rule 6.18(c)(i), in the event that the trading floor becomes inoperable, trading would be conducted pursuant to all applicable Hybrid System rules, except that open-outcry rules would not be in force. In these circumstances, a non-exclusive list of open outcry trading rules that would not apply would include either all, or some portion of, Rules 6.2, 6.2A, 6.8, 6.8B, 6.9, 6.12; 6.12A, 6.13A, 6.20, 6.22, 6.23, 6.45, 6.47, 6.54, 6.74, 7.12, 8.15, and 8.17.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of section 6(b) of the Act
In particular, the proposed rule change is designed to promote the Exchange's ability to ensure the continued operation of a fair and orderly market in the event of a systems failure, disaster, or other unusual circumstances that might threaten the ability to conduct business on the Exchange. The Exchange recognizes that switching operations to the back-up data center may occur in times of uncertainty or great volatility in the markets. It is at these times that the investors may have the greatest need for viable, trustworthy marketplaces. The proposed rule changes seek to ensure that such a marketplace will exist when most needed. Accordingly, the Exchange believes that the proposed rule protects investors in the most fundamental sense by helping to ensure that a fair and orderly market will exist at a time when such a market may be most needed.
The Exchange also believes that the proposed rule change promotes just and equitable principles of trade by adding detail and clarity to the Rules. The proposed rule change seeks to provide additional clarity to the Exchange's disaster recovery rules, putting all market participants on notice as to how the Exchange will function in case of significant systems disruption or other disaster situation. The Exchange is continuously updating the Rules to provide additional detail, clarity, and transparency regarding its operations and trading systems and regulatory authority. The Exchange believes that the adoption of detailed, clear, and transparent rules reduces burdens on competition and promotes just and equitable principles of trade. The Exchange also believes that adding greater detail to the Rules regarding the Exchange's ability to ensure the continuous operation of the market and preserve the ability to conduct business on the Exchange will increase confidence in the markets and encourage wider participation in the markets and greater investment. Finally, the Exchange notes that proposed Rule 6.18 is designed to harmonize the Exchange's disaster recovery rules with Regulation SCI under the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the proposed rule change will help ensure that competitive markets remain operative in the event of a systems failure or other disaster event. The Exchange notes that the proposed rule change is designed to clarify the Exchange's authority to require market participants to participate in, and provide necessary liquidity to ensure fair and orderly markets. The Exchange further notes that the proposed rule change is designed to ensure competitive markets in that it is designed around the mandates of Regulation SCI, which each of the national securities exchanges is required to satisfy.
The Exchange neither solicited nor received written comments on the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. According to the Exchange, the proposed rule change does not present any novel or controversial issues. Rather, the Exchange is merely reorganizing its existing rule, updating cross-references to incorporate previously adopted rules, or adding provisions that are consistent with or required by Regulation SCI. In addition, the Exchange has represented that much of the proposed rule change is already permitted under the Exchange's existing rule. Accordingly, the Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest as it will allow the Exchange to incorporate changes required under Regulation SCI, such as establishing standards for designating BCP/DR Participants, prior to the November 3, 2015 compliance date. Therefore, the Commission designates the proposed rule change to be operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to allow the listing of options overlying portfolio depositary receipts and index fund shares (collectively, “ETFs”) that are listed pursuant to generic listing standards on equities exchanges for series of ETFs based on international or global indexes under which a comprehensive surveillance sharing agreement is not required.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange is proposing to amend Rule 19.3(i) to allow the Exchange's options platform (“EDGX Options”) to list options overlying ETFs that are listed pursuant to generic listing standards on equities exchanges for series of ETFs based on international or global indexes under which a comprehensive surveillance sharing agreement (“CSSA”) is not required.
Currently, EDGX Options rules allow for the listing and trading of options on Fund Shares. Rule 19.3(i)(1)-(3) provide the listings standards for options on Fund Shares with non-U.S. component stocks, such as Fund Shares based on international or global indexes. Rule 19.3(i)(1) requires that any non-U.S. component stocks of an index or portfolio of stocks on which the Fund Shares are based that are not subject to a CSSA do not in the aggregate represent more than 50% of the weight of the index or portfolio. Rule 19.3(i)(2) requires stocks for which the primary market is in any one country that is not
The Exchange notes that the Commission has previously approved generic listing standards pursuant to Rule 19b-4(e) of the Exchange Act for ETFs based on indexes that consist of stocks listed on U.S. exchanges.
In approving ETFs for equities exchange trading, the Commission thoroughly considered the structure of the ETFs, their usefulness to investors and to the markets, and SRO rules that govern their trading. The Exchange believes that allowing the listing of options overlying ETFs that are listed pursuant to the generic listing standards on equities exchanges for ETFs based on international and global indexes and applying Rule 19b-4(e) should fulfill the intended objective of that Rule by allowing options on those ETFs that have satisfied the generic listing standards to commence trading, without the need for the public comment period and Commission approval. The proposed rule has the potential to reduce the time frame for bringing options on ETFs to market, thereby reducing the burdens on issuers and other market participants. The failure of a particular ETF to comply with the generic listing standards under Rule 19b-4(e) would not, however, preclude the Exchange from submitting a separate filing pursuant to section 19(b)(2),
Pursuant to the proposed rule, the Exchange may list and trade options on an ETF without a CSSA provided that the ETF is listed pursuant to generic listing standards for series of ETFs based on international or global indexes under which a comprehensive surveillance agreement is not required. The Exchange believes that these generic listing standards are intended to ensure that stocks with substantial market capitalization and trading volume account for a substantial portion of the weight of an index or portfolio.
The Exchange believes that this proposed listing standard for options on ETFs is reasonable for international and global indexes, and, when applied in conjunction with the other listing requirements,
The Exchange believes that ETFs based on international and global indexes that have been listed pursuant to the generic standards are sufficiently broad-based enough as to make options overlying such ETFs not susceptible instruments for manipulation. The Exchange believes that the threat of manipulation is sufficiently mitigated for underlying ETFs that have been listed on equities exchanges pursuant to generic listing standards for series of portfolio depositary receipts or index fund shares based on international or global indexes under which a comprehensive surveillance agreement is not required and for the overlying options, that the Exchange does not see the need for CSSA to be in place before listing and trading options on such ETFs. The Exchange notes that its proposal does not replace the need for a CSSA as provided in the current rule. The provisions of the current rule, including the need for a CSSA, remain materially unchanged in the proposed rule and will continue to apply to options on ETFs that are not listed on an equities exchange pursuant to generic listing standards for series of portfolio depositary receipts or index fund shares based on international or global indexes under which a comprehensive surveillance agreement is not required. Instead, the proposed rule adds an additional listing mechanism for certain qualifying options on ETFs to be listed on the Exchange.
Finally, the Exchange is also proposing to make several non-substantive changes to the rule text in order to make it easier to read and understand. Specifically, the Exchange is proposing to move paragraph (4) to become paragraph (1), to renumber each of paragraphs (1), (2), (3), (5), and (6) to (B), (C), (D), (E), and (F), respectively, and to make clear that each of the proposed newly numbered paragraphs (B), (C), (D), (E), and (F) apply to the series of Fund Shares that do not meet the criteria proposed in proposed new paragraph (A).
The Exchange believes that its proposal is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of section 6(b) of the Act.
The Exchange also believes that the proposed non-substantive organizational changes are reasonable, fair, and equitable because they are designed to make the rule easier to comprehend. As noted above, the proposed non-substantive changes do not change the need for a CSSA as provided in the current rule. The provisions of the current rule, including the need for a CSSA, remain materially unchanged in the proposed rule and will continue to apply to options on ETFs that are not listed on an equities exchange pursuant to generic listing standards for series of portfolio depositary receipts or index fund shares based on international or global indexes under which a comprehensive surveillance agreement is not required. These non-substantive changes to the rules are intended to make the rules clearer and less confusing for participants and investors and to eliminate potential confusion, thereby removing impediments to and perfecting the mechanism of a free and open market and a national market system, and, in general, protecting investors and the public interest.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the proposed rule change is a competitive change that is substantially similar to recent rule changes by other options exchanges, such as MIAX Options Exchange (“MIAX”), NASDAQ OMX PHLX, LLC (“Phlx”), and International Stock Exchange LLC (“ISE”).
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative prior to 30 days after the date of filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 28, 2015, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to list and trade the Shares under NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares. The Shares will be offered by First Trust Exchange-Traded Fund IV (“Trust”), a Massachusetts business trust which is registered with the Commission as an open-end management investment company.
The Exchange states that, under normal market conditions,
According to the Exchange, the Fund, under normal market conditions, will invest up to 20% of the value of its net assets (plus borrowings for investment purposes) in the following securities and financial instruments described below.
Equity securities, other than Real Estate Securities, in which the Fund will invest may include common and preferred stocks. The Fund may also invest in warrants and rights related to common stocks, preferred equity securities and restricted securities (Rule 144A securities) that are not also Real Estate Securities. The Fund may invest in exchange-traded pooled investment vehicles, open-end or closed-end investment company securities, other exchange-traded funds (“ETFs”) and business development companies (“BDCs”) that invest primarily in securities of the types in which the Fund may invest directly.
The Fund may invest in companies that are considered to be “passive foreign investment companies” (“PFICs”), which are generally certain non-U.S. corporations that receive at least 75% of their annual gross income from passive sources (such as interest, dividends, certain rents and royalties or capital gains) or that hold at least 50% of their assets in investments producing such passive income.
Fixed income investments and cash equivalents held by the Fund may include, the following types of investments: (1) U.S. government securities, including bills, notes and bonds differing as to maturity and rates of interest, which are either issued or guaranteed by the U.S. Treasury or by U.S. government agencies or instrumentalities; (2) certificates of deposit issued against funds deposited in a bank or savings and loan association; (3) bankers' acceptances, which are short-term credit instruments used to finance commercial transactions; (4) repurchase agreements, which involve purchases of debt securities with counterparties that are deemed by the Adviser to present acceptable credit risks; (5) bank time deposits, which are monies kept on deposit with banks or savings and loan associations for a stated period of time at a fixed rate of interest; (6) commercial paper, which are short-term unsecured promissory notes, including variable rate master demand notes (direct lending arrangements between the Fund and a corporation) issued by corporations to finance their current operations; (7) shares of money market funds.
The Fund may invest in the following types of non-U.S. fixed income securities (including securities of certain non-U.S. companies): Securities issued or guaranteed by companies organized under the laws of countries other than the United States (including emerging markets), securities issued or guaranteed by foreign, national, provincial, state, municipal or other governments with taxing authority or by their agencies or instrumentalities and debt obligations of supranational governmental entities such as the World Bank or European Union. Non-U.S. securities may also include U.S. dollar-denominated debt obligations, such as “Yankee Dollar” obligations (U.S. dollar-denominated obligations issued in the U.S. capital markets by foreign corporations, banks and governments) of foreign issuers and of supra-national government entities.
The Fund also may invest in forward foreign currency exchange contracts.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of section 6 of the Act
The Commission finds that the proposal to list and trade the Shares on the Exchange is consistent with section 11A(a)(1)(C)(iii) of the Act,
The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Commission notes that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time.
The Exchange deems the Shares to be equity securities, which renders trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities.
In support of this proposal, the Exchange has made additional representations, including:
(1) The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600.
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange.
(4) Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit (“ETP”) Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (a) The procedures for purchases and redemptions of Shares in Creation Units (and that Shares are not individually redeemable); (b) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (c) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated PIV will not be calculated or publicly disseminated; (d) how information regarding the PIV will be disseminated; (e) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information.
(5) For initial and/or continued listing, the Fund will be in compliance with Rule 10A-3
(6) A minimum of 100,000 Shares for the Fund will be outstanding at the commencement of trading on the Exchange.
(7) Not more than 10% of the net assets of the Fund in the aggregate invested in equity securities (other than non-exchange-traded investment company securities) shall consist of equity securities whose principal market is not a member of the ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
This approval order is based on all of the Exchange's representations.
For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with section 6(b)(5) of the Act
Interested persons are invited to submit written data, views, and arguments concerning whether Amendment No. 1 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.
The Commission finds good cause to approve the proposed rule change, as modified by Amendment No. 1, prior to the thirtieth day after the date of publication of notice in the
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The principal purpose of the rule change is to amend certain provisions of the ICE Clear Europe rules and procedures that address clearing services for European natural gas spot contracts.
In its filing with the Commission, ICE Clear Europe included statements concerning the purpose of and basis for the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. ICE Clear Europe has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
ICE Clear Europe has agreed to act as the clearing organization for certain natural gas spot contracts (the “Natural Gas Spot Contracts”) traded on the ICE Endex Gas B.V. (“ICE Endex Continental”) and ICE Endex Gas Spot Ltd. (“ICE Endex UK”) markets and has previously adopted amendments to its Rules and Procedures with respect to the clearing of such contracts.
In the Rules, the revisions to definitions in parts 1 and 22 correct cross-references to certain definitions in the ICE Endex Continental market rules. In Rule 106(a), a clarification is made that disclosures of information may be made by ICE Clear Europe pursuant to obligations imposed on a Market under relevant gas delivery system rules. In Rule 703, which relates to settlement of physically settled futures contracts, Rule 703(h) is modified to clarify ICE Clear Europe's ability to require cash settlement (as may be provided in the relevant Delivery Procedures) where grounds for declaring an Event of Default or Force Majeure Event have occurred with respect to a Clearing Member, but without actually declaring an Event of Default. This approach reflects practices for gas and other relevant markets.
In part D of the Delivery Procedures, which relates to delivery of ICE Futures UK Natural Gas Daily Futures Contracts, clarifications have been made to the timing of certain requirements, including the deadline for submission of certain documentation.
In part E of the Delivery Procedures, various definitions relating to different types of ICE Endex UK natural gas spot contracts have been added or clarified. In addition, delivery responsibilities of transferors and transferees, and related delivery procedures, for the different types of ICE Endex UK spot contracts have been further specified. The amendments in particular address modifications the transferor or transferee (as applicable) may make to the amount of gas to be delivered to or offtaken from the relevant system, and provide that ICE Clear Europe is not responsible for such modifications. The amendments also correct an incorrect reference to ICE Clear Europe as making certain trade nominations with respect to gas delivery.
In part J of the Delivery Procedures, which relates to delivery of ICE Endex Continental gas spot contract, the amendments provide that ICE Endex Continental will submit trade nominations on behalf of ICE Clear Europe and Clearing Members, as applicable, with respect to gas deliveries. The amendments also clarify the applicable responsibilities of the nominated transferor and transferee with respect to delivery.
In part N of the Delivery Procedures (relating to U.S. Emissions contracts), relevant terminology has been changed from “Position Day” and “Notice Day” to “Notice Day” and “Delivery Instruction Day” to conform to relevant exchange rules.
ICE Clear Europe believes that the proposed rule change is consistent with the requirements of section 17A of the Act
ICE Clear Europe does not believe the proposed rule and procedure changes would have any impact, or impose any burden, on competition not necessary or appropriate in furtherance of the purpose of the Act. As discussed in the Initial Spot Contract Filing, ICE Clear Europe does not believe that clearing of the Natural Gas Spot Contracts, or the changes to the clearing arrangements made in the proposed amendments to the Rules and Procedures, would adversely affect access to clearing for clearing members or their customers or other market participants, or materially and adversely affect the cost of clearing for market participants. Similarly, ICE Clear Europe does not believe the proposed change would otherwise adversely affect competition among clearing members or for clearing services generally.
Written comments relating to the proposed changes to the rules have not been solicited or received. ICE Clear Europe will notify the Commission of any written comments received by ICE Clear Europe.
The foregoing rule change has become effective upon filing pursuant to section 19(b)(3)(A)
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.
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-ICEEU-2015-017 and should be submitted on or before November 16, 2015.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
[80 FR 64038, October 22, 2015].
Oral Argument.
100 F Street NE., Washington, DC.
October 26, 2015.
Room Change.
The Oral Argument scheduled for Monday, October 26, 2015 at 1:00 p.m. will be held in the Closed Commission Hearing (Room 10800).
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to implement an order exposure alert to be disseminated by the Exchange when a marketable order is placed on the book at a price that locks or crosses the national best bid or offer (“NBBO”) when the Exchange is not part of the NBBO.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to amend rulebook Chapter VI, Section 11 to implement an order exposure alert in order to provide marketable orders an additional opportunity for execution on the Exchange when the Exchange is not part of the NBBO contra to the order and the order locks or crosses the away best bid or offer (“ABBO”).
The Trading System provides two routing options, SEEK
Currently, when the Exchange's disseminated bid or offer is inferior to the ABBO and an order that is marketable against the ABBO is received, it is matched against any possible contra side orders available in the Trading System. If a routable order is still unexecuted, or if only partially executed, it is then routed away to the market or markets at the ABBO, cancelled back to the entering party or posted on the book and displayed at a non-locking price according to the instructions on the order.
The Exchange is now proposing to amend rulebook Chapter VI, Section 11 to implement an order exposure alert in order to provide marketable orders an additional opportunity for execution on the Exchange when the Exchange is not part of the NBBO and the order locks or crosses the ABBO. The order exposure alert will apply to both SEEK and SRCH orders and is similar to the order exposure alert process already in place on NASDAQ OMX PHLX (“Phlx”).
The Exchange proposes to amend Chapter VI, Section 11(1)(A) to provide that a SEEK order remaining on the book after the opening process or received during open trading that is marketable against the ABBO when the ABBO is better than the displayed Exchange BBO will initiate a Route Timer not to exceed one second, and expose the SEEK order at the NBBO to allow market participants an opportunity to interact with the SEEK order. During the Route Timer, the SEEK order will be included in the displayed Exchange BBO at the better of a price one MPV away from the ABBO or the established Exchange BBO. If, during the Route Timer, any new interest arrives opposite the SEEK order that is equal to or better than the ABBO price, the SEEK order will trade against such new interest at the ABBO price.
The Exchange also proposes to amend Chapter VI, Section 11(1)(B), to provide that a SRCH order remaining on the book after the opening process or received during open trading that is marketable against the ABBO when the ABBO is better than the displayed Exchange BBO will initiate a Route Timer not to exceed one second, and expose the SRCH order at the NBBO to allow market participants an opportunity to interact with the remainder of the SRCH order. During the Route Timer, the SRCH order will be included in the displayed Exchange BBO at the better of a price one MPV away from the ABBO or the established Exchange BBO. If, during the Route Timer, any new interest arrives opposite the SRCH order that is equal to or better than the ABBO price, the SRCH order will trade against such new interest at the ABBO price.
The Exchange proposes to redesignate existing Section 11(a)(1)(C) as Section 11(a)(1)(D) and to add new Section 11(a)(1)(C) dealing with Do Not Route or “DNR” Orders. Currently, Section 11(a) provides that Participants can designate orders as not available for routing. The new rule provides additional specificity regarding the Exchange's treatment of such orders, known as DNR orders, tracking language regarding DNR orders from the Phlx rules.
The Exchange proposes to amend existing paragraph 11(a)(1)(C) which is being redesignated as paragraph 11(a)(1)(D). The amendments state that SEEK and SRCH orders will also be exposed prior to being re-routed at the end of the Route Timer provided for in that paragraph. Thus, the first sentence of that paragraph will be revised to provide that after an order is initially routed, pursuant to either the SEEK or SRCH routing option the order will post to the book and will be exposed and routed after a time period (“Route Timer”) not to exceed one second as specified by the Exchange on its Web site provided that the order's limit price would lock or cross other market center(s). Similarly, the final sentence of the paragraph will be amended to state that if an order was routed with either the SEEK or SRCH routing option, and has size after such routing, it will execute against contra side interest in the book, post in the book, and be exposed and route again pursuant to the process described above, if applicable, if the order's limit price would lock or cross another market center(s).
Finally, the Exchange is amending Chapter VI, Trading Systems, Section 1, Definitions, subsection (g)(2) which defines “Immediate or Cancel” or “IOC” as a time in force which means, for orders so designated, that if after entry into the System a marketable order (or unexecuted portion thereof) becomes non-marketable, the order (or unexecuted portion thereof, is canceled and returned to the entering participant. The Exchange is deleting the last sentence of the definition, which currently states that “IOC orders can be routed if designated as routable.” The Exchange has determined that IOC orders will be cancelled immediately if not executed, and will not be routed. IOC orders are currently handled in this manner on Phlx.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposal should facilitate the ability of the Exchange to bring together market participants and encourage more robust competition.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 1, 2015, NYSE Arca, Inc. (the “Exchange” or “Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to adopt new equity trading rules relating to the implementation of Pillar, the Exchange's new trading technology platform. The Exchange proposes to adopt the following new Pillar rules: (1) Definition of “Official Closing Price” (NYSE Arca Equities Rule 1.1 (“Rule 1.1”)); (2) Clearly Erroneous Executions (NYSE Arca Equities Rule 7.10P (“Rule 7.10P”)); (3) Limit Up—Limit Down Plan and Trading Pauses in Individual Securities Due to Extraordinary Market Volatility (NYSE Arca Equities Rule 7.11P (“Rule 7.11P”));
The Exchange represents that Pillar is an integrated trading technology platform designed to use a single specification for connecting to the equities and options markets operated by Arca and its affiliates, New York Stock Exchange LLC (“NYSE”) and NYSE MKT LLC (“NYSE MKT”).
This filing is the third set of proposed rule changes to support Pillar implementation. As proposed, the new rules governing trading on Pillar would have the same numbering as current rules, but with the modifier “P” appended to the rule number. The Exchange proposes that rules with a “P” modifier would operate for symbols that are trading on the Pillar trading platform. If a symbol is trading on the Pillar trading platform, a rule with the same number as a rule with a “P” modifier would no longer operate for
As described in detail in the Notice, Rules 7.10P, 7.11P, 7.16P, 7.18P, and 7.38P incorporate much of the substance of current NYSE Arca Rules 7.10, 7.11, 7.16, 7.18, and 7.38, respectively. However, with Pillar, the Exchange would introduce new terminology, reorganize and redraft certain provisions to improve clarity, and provide additional detail to other current provisions being redesignated. The Exchange also proposes to make several changes that are more substantive in nature, as follows:
• Adopt a new definition in Pillar to define the term “Official Closing Price,” which would mean the reference price to determine the closing price in a security for purposes of Rule 7 Equities Trading;
• during Core Trading Hours, the Exchange would halt trading during a UTP Regulatory Halt until it receives the first Price Band in a UTP Security;
• the Exchange would not conduct any Trading Halt Auctions in UTP Securities;
• Pegged Orders would not be cancelled during a UTP Regulatory Halt;
• During a UTP Regulatory Halt, the Exchange would process a request to cancel and replace as a cancellation without replacing the order;
• During a UTP Regulatory Halt, the Exchange would accept and route new Market Orders, Auction-Only Orders, Primary Only Market-on-Open (“MOO”)/Limit on Open (“LOO”) Orders, Primary Only Day Orders, and Primary Only Market-on-Close (“MOC”)/Limit-on-Close (“LOC”) Orders to the primary listing market;
• As described more fully in the Notice, because Exchange-listed securities would be eligible to participate in a Trading Halt Auction, the Exchange proposes to process orders in Exchange-listed securities differently than how it would process orders in UTP Securities;
• As described more fully in the Notice, because of proposed substantive differences to how certain orders and modifiers would operate, the Exchange proposes different handling of certain orders in Pillar to comply with the requirements of Rule 201 of Regulation SHO (“Rule 201”);
• The Exchange would use the Official closing Price for purposes of determining the Trigger Price for the Short Sale Price Test in exchange-listed securities;
• An Exchange Trading Permit (“ETP”) Holder's instruction to reject back individual short sale orders subject to the short sale price test would apply to resting orders;
• As described more fully in the Notice, the Exchange would expand the number of order types that would be eligible for optional re-pricing instructions pursuant to the LULD Plan;
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act
The Commission notes that the Exchange believes that the proposed rules would remove impediments to and perfect the mechanism of a free and open market because the proposed rule set would promote transparency by using consistent terminology governing equities trading, and by clearly denoting the rules that govern once a symbol has been migrated to the Pillar platform.
With respect to the proposed changes to Rule 1.1, the Commission notes that the Exchange believes that the proposed amendments would remove impediments to and perfect the mechanism of a fair and orderly market because they would not make any substantive changes to Exchange rules, but rather are designed to reduce confusion by eliminating obsolete references and terms and therefore streamline the Exchange's rules. The Commission also notes that the Exchange further believes that the proposed new definition for the term “Official Closing Price” would remove impediments to and perfect the mechanism of a fair and orderly market because the proposed definition would promote transparency regarding the reference price the Exchange would use in Pillar for purposes of calculating Trading Collars, pursuant to proposed Rule 7.31P(a)(1)(B), and for purposes of determining a Trigger Price pursuant to proposed Rule 7.16P(f)(2).
For determining the Official Closing Price, the Exchange states that it believes that in the absence of a Closing Auction of a round lot or more, the most recent consolidated last sale eligible trade during Core Trading Hours best approximates the market's determination of the appropriate price of such securities.
With respect to proposed Rule 7.10P, regarding clearly erroneous executions, the Commission notes that the Exchange represents that the proposal would remove impediments to and perfect the mechanism of a fair and orderly market because it would use Pillar terminology, without any substantive differences from current Rule 7.10.
With respect to proposed Rule 7.11P, the Commission notes that the Exchange believes that the proposed substantive difference to expand the number of Limit Orders eligible for re-pricing instructions would be consistent with the LULD Plan, and therefore would remove impediments to and perfect the mechanism of a fair and orderly market, because the proposed re-pricing of such orders would assure that such orders would not trade at or be displayed at prices outside of the Price Bands.
With respect to Short Sales, the Commission notes that the Exchange represents that proposed Rule 7.16P would remove impediments to and perfect the mechanism of a fair and orderly market because it would use Pillar terminology to describe how the Exchange would process sell short orders during a Short Sale Period, consistent with Rule 201 of Regulation SHO.
With respect to proposed Rule 7.18P, the Commission notes that the Exchange believes that it would remove impediments to and perfect the mechanism of a fair and orderly market because it would set forth in a single rule the requirements for trading halts on the Exchange in both UTP Securities and Exchange-listed securities, which are currently set forth in Rules 7.11(b)(6), 7.18, and 7.34(a)(4) and (a)(5).
With respect to proposed Rule 7.38P, the Commission notes that the Exchange believes that the proposed rule would promote consistency in the Exchange's rule book by using Pillar terminology to describe how the Exchange would price odd lot orders so that they would not trade through the protected best bid or offer (“PBBO”).
Based on the Exchange's representations, the Commission
In Amendment No. 1, the Exchange: (i) Removes an erroneous reference to subparagraph (6) from proposed Rule 7.11P(b); (ii) amends proposed Rule 7.16P(f)(5)(A) to add the phrase “or lower than” to clarify that short sale orders with a working price and/or display price below the NBB would also be re-priced to a Permitted Price; (iii) amends proposed Rule 7.16P(f)(5)(C) to clarify that the Exchange would treat all odd lot orders ranked Priority 2—Display Orders in the same manner as Market Orders and other non-displayed orders; (iv) amends proposed Rule 7.16P(f)(5)(D) to provide that
The Commission believes that the changes proposed in Amendment No. 1 are non-substantive and further clarify the operation of the proposed rules governing Pillar. Accordingly, the Commission finds good cause, pursuant to Section 19(b)(2) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment No. 1 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.
IT IS THEREFORE ORDERED, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the provisions of section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend Exchange Rule 404 to replace the name “Google Inc.” with “Alphabet Inc.”
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to amend Interpretations and Policies .08 to MIAX Rule 404, entitled Mini Option Contracts, to replace the name “Google Inc.” with “Alphabet Inc.” Google Inc. (“Google”) recently announced plans to reorganize and create a new public holding company, which will be called Alphabet Inc. (“Alphabet”). As a result of the holding company reorganization, each share of Class A Common Stock (“GOOGL”), on which the Exchange has the ability to list as a Mini Option, will automatically convert into an equivalent corresponding share of Alphabet Inc. stock. The symbol “GOOGL” remains unchanged.
The Exchange is proposing to make this change to Interpretations and Policies .08 to enable the Exchange to list and trade Mini Options on Google, now Alphabet, Class A shares. The Exchange is proposing to make this change because, on October 5, 2015 Google reorganized and as a result underwent a name change.
The purpose of this change is to ensure that Interpretations and Policies .08 to Exchange Rule 404 reflects the Exchange's intention to be able to list and trade Mini Options on only an exhaustive list of underlying securities outlined in Interpretations and Policies .08 to Rule 404. As a result, the proposed change will help avoid confusion.
MIAX believes that its proposed rule change is consistent with section 6(b) of the Act
In particular, the proposed rule change to change the name Google to Alphabet to reflect the new ownership structure is consistent with the Act because the proposed change is merely updating the current name associated with the stock symbol GOOGL. The proposed change will allow for continued benefit to investors by enabling the Exchange to provide them with additional investment alternatives.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. In particular, the proposed rule change to change the name Google to Alphabet to reflect the new ownership structure is consistent with the Act because the proposed change is merely updating the current name associated with the stock symbol GOOGL. The proposed change will allow for continued benefit to investors by enabling the Exchange to provide them with additional investment alternatives.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend Rule 11.13, Order Execution and Routing, to enable Users
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 11.13, Order Execution and Routing, to enable Users to designate their orders for participation in the re-opening (following a halt, suspension, or pause) of a primary listing market other than the Exchange (NYSE, Nasdaq, NYSE MKT, or NYSE Arca) if received before the re-opening time of such market. The Exchange currently offers the ROOC routing option, under which Users may designate their orders for participation in the opening or closing process, in addition to the re-opening (following a halt, suspension, or pause), of a primary listing market other than the Exchange, if received before the opening/re-opening/closing time of such market.
The proposed optionality would operate like the current ROOC routing option, but for routing to the primary listing market's opening or closing process. Lastly, like the ROOC routing option, any remaining shares will either be posted to the BATS Book,
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposal will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that its proposal would increase competition because it offers Users an alternative means to route orders to the primary listing market to participate in the re-opening following a halt, suspension, or pause as if they entered orders on that market directly.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The Exchange has designated this rule filing as non-controversial under Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily temporarily suspend such rule change if it appears to the Commission that such action is: (1) Necessary or appropriate in the public interest; (2) for the protection of investors; or (3) 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.
U.S. Small Business Administration.
Notice of Members for the FY 2016 Performance Review Board.
Title 5 U.S.C. 4314(c)(4) requires each agency to publish notification of the appointment of individuals who may serve as members of that Agency's Performance Review Board (PRB). The following individuals have been designated to serve on the FY 2016 Performance Review Board for the U.S. Small Business Administration.
The Advisory Committee on International Economic Policy (ACIEP) will meet from 2:00 until 5:00 p.m., on Tuesday, November 10, 2015, in Washington, DC at the State Department, 2201 C Street NW., in Conference Room 4477. The meeting will be hosted by the Assistant Secretary of State for Economic and Business Affairs, Charles H. Rivkin and Committee Chair Paul R. Charron. The ACIEP serves the U.S. government in a solely advisory capacity, and provides advice concerning topics in international economic policy. It is expected that the ACIEP subcommittees will provide updates on their work.
This meeting is open to public participation, though seating is limited. Entry to the building is controlled. To obtain pre-clearance for entry, members of the public planning to attend should
For additional information, contact Alan Krill, Office of Economic Policy Analysis and Public Diplomacy, Bureau of Economic and Business Affairs, at (202) 647-0812, or
The U.S. Department of State, Bureau of Oceans and International Environmental and Scientific Affairs (OES), Office of Marine Conservation announces that the Advisory Panel to the U.S. Section of the North Pacific Anadromous Fish Commission will meet on November 23, 2015.
The meeting will take place via teleconference on November 23rd, 2015 from 2 p.m. to 4 p.m. Eastern time.
Elana Katz-Mink, Office of Marine Conservation, OES, Room 2758, U.S. Department of State, 2201 C Street NW., Washington, DC 20520. Telephone (202) 647-1073, fax (202) 736-7350, email address
In accordance with the requirements of the Federal Advisory Committee Act, notice is given that the Advisory Panel to the U.S. Section of the North Pacific Anadromous Fish Commission (NPAFC) will meet on the date and time noted above. The panel consists of members from the states of Alaska and Washington who represent the broad range fishing and conservation interests in anadromous and ecologically related species in the North Pacific. Certain members also represent relevant state and regional authorities. The panel was established in 1992 to advise the U.S. Section of the NPAFC on research needs and priorities for anadromous species, such as salmon, and ecologically related species occurring in the high seas of the North Pacific Ocean. The upcoming Panel meeting will focus on three major topics: (1) Review of the agenda for the 2015 annual meeting of the NPAFC (May 11-15, 2015; Kobe, Japan); and (2) planning for the work of the Advisory Panel in 2016. Background material is available from the point of contact noted above and by visiting
By virtue of the authority vested in the Secretary of State by the laws of the United States, including Section 1 of the State Department Basic Authorities Act, as amended (22 U.S.C. 2651a), I hereby delegate to Thomas A. Shannon the authorities and functions of the Under Secretary of State for Political Affairs; as well as, to the extent authorized by law, all authorities and functions that have been or may be delegated to the Under Secretary of State for Political Affairs.
This delegation of authority does not revoke, supersede, or affect any other delegation of authority. Any authority covered by this delegation may also be exercised by the Secretary, the Deputy Secretary, or the Deputy Secretary for Management and Resources.
This delegation shall expire upon the appointment and entry upon duty of an individual to replace Wendy R. Sherman as the Under Secretary of State for Political Affairs.
This delegation of authority shall be published in the
Tennessee Valley Authority.
30-Day notice of submission of information collection approval and request for comments.
This survey will be used to determine estimates for the numbers annual recreation visits, associated user economic impacts and will target both reservoir and tailwater general recreation users and shoreline property owners. The proposed information collection described below will be submitted to the Office of Management and Budget (OMB) at,
Comments should be sent to the Agency Clearance Officer and the OMB Office of Information & Regulatory Affairs, Attention: Desk Officer for Tennessee Valley Authority, Washington, DC, 20503, or email:
Requests for information, including copies of the information collection proposed and supporting documentation, should be directed to the Agency Clearance Officer: Philip D Propes, Tennessee Valley Authority, 1101 Market Street (SP-5S-108), Chattanooga, Tennessee 37402-2801; (423) 751-8593.
Need For and Use of Information: TVA will contract with the University of Tennessee to Survey by mail and in person recreation users on the TVA reservoir system to determine estimates for the numbers annual recreation visits and associated economic impacts from
Tennessee Valley Authority.
30-day notice of submission of information collection approval and request for comments.
This survey is used to locate, for monitoring purposes, rural residents, home gardens, and milk animals within a five mile radius of a nuclear power plant. The Land use survey is performed once per year. TVA uses the Land use survey data for their effluent annual report to the NRC normally in April every year. The proposed information collection described below will be submitted to the Office of Management and Budget (OMB) at,
Comments should be sent to the Agency Clearance Officer and the OMB Office of Information & Regulatory Affairs, Attention: Desk Officer for Tennessee Valley Authority, Washington, DC 20503, or email:
Requests for information, including copies of the information collection proposed and supporting documentation, should be directed to the Agency Clearance Officer: Philip D. Propes, Tennessee Valley Authority, 1101 Market Street (SP-5S-108), Chattanooga, Tennessee 37402-2801; (423) 751-8593.
Tennessee Valley Authority.
Issuance of record of decision.
This notice is provided in accordance with the Council on Environmental Quality's regulations (40 CFR 1500 to 1508) and TVA's procedures for implementing the National Environmental Policy Act (NEPA). TVA has decided to adopt the preferred alternative in its final supplemental environmental impact statement (SEIS) for the Integrated Resource Plan (IRP). The notice of availability (NOA) of the
Charles P. Nicholson, NEPA Compliance, Tennessee Valley Authority, 400 West Summit Hill Drive, WT 11D, Knoxville, Tennessee 37902-1499; telephone 865-632-3582 or email
Gary S. Brinkworth, IRP Project Manager, Tennessee Valley Authority, 1101 Market Street, MR 3K-C, Chattanooga, Tennessee 3740s; telephone 423-751-2193, or email
TVA is an agency and instrumentality of the United States, established by an act of Congress in 1933, to foster the social and economic welfare of the people of the Tennessee Valley region and to promote the proper use and conservation of the region's natural resources. One component of this mission is the generation, transmission, and sale of reliable and affordable electric energy. TVA operates the largest public power system in the nation, providing electricity to about 9 million people in an 80,000-square mile area comprised of most of Tennessee and parts of Virginia, North Carolina, Georgia, Alabama, Mississippi, and Kentucky. It provides wholesale power to 155 independent power distributors and 59 directly served large industrial and federal customers. The TVA Act requires the TVA power system to be self-supporting and operating on a nonprofit basis and directs TVA to sell power at rates as low as are feasible.
Dependable generating capability on the TVA power system is about 37,200 megawatts (MW). TVA generates most of this power with 3 nuclear plants, 10 coal-fired plants, 9 combustion-turbine plants, 6 combined cycle plants, 29 hydroelectric plants, a pumped-storage facility, and several small renewable facilities. These facilities generated 142.2 billion kilowatt-hours in fiscal year 2014. The major sources for this power were coal (40 percent), nuclear (33 percent), natural gas (13 percent), and hydroelectric (10 percent). Other sources comprised less than 1 percent of TVA generation. Total power delivered to customers in fiscal year 2014 was 161 gigawatt-hours (GWh). A portion of this delivered power was provided through long-term power purchase agreements.
The recently completed IRP updates TVA's 2011 IRP. Consistent with Section 113 of the Energy Policy Act of 1992, codified within the TVA Act, TVA employed a least-cost system planning process in developing the IRP. This process took into account the demand for electricity, energy resource diversity, reliability, costs, risks, environmental impacts, and the unique attributes of different energy resources.
TVA uses state-of-the-art energy forecasting models to predict future demands on its system. Because of the uncertainty in predicting future demands, TVA developed high, medium, and low forecasts for both
Based on these load growth forecasts, TVA's current firm capacity (TVA generation, energy efficiency and demand response measures, and power purchase agreements), and including a 15 percent planning reserve margin, TVA would need additional energy resources in the future. The medium-growth case needs are 2,500 MW of additional capacity and 14,000 GWh of additional energy by 2020, growing to 11,600 MW and 51,000 GWh by 2033.
Six alternative energy resource strategies were evaluated in the Draft SEIS and IRP. These resource planning strategies were identified as potential alternative means of serving future electrical energy demands on the TVA system while meeting least-cost system planning requirements. These alternative strategies are:
The alternative strategies were analyzed in the context of five scenarios or future “worlds” that were determined to be reasonably possible to occur. The scenarios were TVA's current outlook, a stagnant economy, a growth economy, a de-carbonized future, and a distributed energy marketplace. Each scenario is a set of uncertainties relevant to power system planning that include plausible future economic, financial, regulatory and legislative conditions, as well as social trends and adoption of technological innovations. Potential 20-year capacity expansion plans or resource portfolios were developed for each combination of alternative strategy and scenario using a capacity planning model. The model built each portfolio from a range of potential energy resource options that included TVA's existing energy resources and new coal, nuclear, natural gas, hydroelectric, wind, solar, and biomass generation, energy storage, and energy efficiency and demand response resources. Each portfolio was optimized for the lowest Present Value of Revenue Requirements while meeting energy balance, reserve, operational, and other requirements. The portfolios were then evaluated using an hourly production costing program to determine detailed revenue requirements and near- and long-term system average costs. Recognizing the uncertainty in long-range planning studies, extensive stochastic analyses were also conducted to identify risk exposure within each scenario. Additional metrics developed to rank the portfolios included financial risk, CO
Strategies A-C had similar scores for most metrics and the scores for Strategies A and B were almost identical and for some metrics slightly better than Strategy C. Strategy E, with the greatest emphasis on renewable energy resources, scored the best on the three environmental metrics of CO
TVA then developed a preferred alternative, the Target Power Supply Mix, based on guideline ranges for key energy resources. In developing it, TVA took into account its least-cost planning requirement and customer priorities of power cost and reliability, as well as other comments it received during the public comment on the Draft IRP and SEIS. The Target Power Supply Mix establishes ranges, in MW, for coal plant retirements and additions of nuclear, hydroelectric, demand response, energy efficiency, solar, wind, and natural gas capacity. The recommended ranges are based on Strategies A-C and the Current Outlook Scenario, expressed over the 20-year planning period with more specific direction over the first 10-year period. The Target Power Supply Mix also includes broader ranges resulting from the sensitivity analyses. Shifts in resource additions within the ranges would be based on changes in the load forecast, the price of natural gas and other commodities, the price and performance of energy efficiency and renewable resources, and impacts from regulatory policy or breakthrough technologies.
TVA published a notice of intent to prepare the IRP SEIS in the
The Notice of Availability of the Draft IRP and SEIS was published in the
All of the alternative strategies, as well as the Target Power Supply Mix, have several common features that affect their anticipated environmental impacts. The only new baseload generation added is the extended power uprate of three nuclear units, a component of all alternative strategies. All result in decreases in coal-fired generation and increases in the reliance on energy efficiency and renewable resources. All also add varying amounts of new natural gas-fueled generation to meet peak loads. Emissions of air pollutants and CO
Strategies A-C and the Target Power Supply Mix have similar environmental impacts and their impacts to most environmental resources are greater than those of Strategies D and E. Because of its greater reliance on generation by fossil fuels, Strategy D has somewhat greater impacts to most environmental resources than Strategy E. Strategy E has the greatest reliance on renewable energy resources, which, particularly for utility-scale solar generation, have large land requirements. Strategy E would therefore directly affect the largest land area, almost twice that of the other alternative strategies and the Target Power Supply Mix. Relative to other types of generation, impacts of solar facilities on land resources are low. Overall, Strategy E is considered the environmentally preferred alternative.
On August 21, 2015, the TVA Board of Directors approved the preferred alternative, the Target Power Supply Mix. The Board also directed staff to monitor future developments to help determine when deviations from the recommended resource ranges should be made and to initiate an update to the IRP no later than 2020 and earlier if future developments make this appropriate.
The reduction of environmental impacts was an important goal in TVA's integrated resource planning process and all of the alternatives assessed by TVA do that. Because this is a programmatic review, measures to reduce potential environmental impacts on a site-specific level were not identified. As TVA deploys specific energy resources, it will review and take measures to reduce their potential environmental impacts as appropriate. TVA's siting process for generation and transmission facilities, as well as processes for modifying these facilities, are designed to avoid and/or minimize potential adverse environmental impacts. Potential impacts will also be reduced through pollution prevention measures and environmental controls such as air pollution control systems, wastewater treatment systems, and thermal generating plant cooling systems. Other potentially adverse unavoidable impacts will be mitigated by measures such as compensatory wetlands mitigation, payments to in-lieu stream mitigation programs and related conservation initiatives, enhanced management of other properties, documentation and recovery of cultural resources, and infrastructure improvement assistance to local communities.
Federal Aviation Administration, Department of Transportation.
Notice of intent of waiver with repect to land.
Notice is hereby given per 49 U.S.C. 47107(h)(1)(A) that the Federal Aviation Administration (FAA) is considering a proposal to change approximately 9.1 acres of airport land from aeronautical use to non-aeronautical use and to authorize the sale of this airport property.
As described in the 2011 approved Airport Layout Plan, the 9.1 acres of airport land are composed of Tract C Lots LL 2 and LL 3, and Tract D Lot LL 1C. Precently these properties are occupied as follows: LL 2 Mat-Su Borough Nutrition Center, LL 3 Baseball Fields, and LL 1C City Water Well.
Comments must be received on or before November 25, 2015.
Send comments on this document to Mike Edelmann, Aviation Planner, Federal Aviation Administration, Alaskan Region Airports Division, 222 W. 7th Avenue, #14, Anchorage, AK 99513-7587. In addition, one copy of any comments submitted to the FAA must be mailed or delivered to: City of Palmer Alaska POC Jeffrey Combs Airport Superintendent (907) 761-1334
Mr. Michael Edelmann, Federal Aviation Administration, Alaskan Region Airports Division, 222 W. 7th Avenue, #14, Anchorage, AK 99513-7587, telephone 907-271-5026, email
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 25, 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 Motor Carrier Safety Administration (FMCSA), DOT.
Notice of denials of exemption applications.
FMCSA announces its decision to deny applications from 14 of 15 individuals seeking exemptions from the Federal cardiovascular standard applicable to interstate truck and bus drivers and the reasons for the denials. The Agency reviewed the medical information of each of the individuals who applied for an implantable cardioverter defibrillator (ICD) exemption. Because the medical information received from the cardiologist concerning one individual indicates the ICD has been disabled due to improvement of his heart function, the exemption is no longer needed to operate commercial motor vehicles (CMVs) in interstate commerce. Based on a review of the applications and following an opportunity for public comment, FMCSA has concluded that the remaining 14 individuals in the notice did not demonstrate they could achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained by complying with the regulation.
Denial letters were sent to each of the individuals listed in this notice on July 24, 2015.
Ms. Christine A. Hydock, Chief Medical Programs Division, 202-366-4001, U.S. Department of Transportation, FMCSA, 1200 New Jersey Avenue SE., Room W64-224, Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m. Monday through Friday, except Federal holidays.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” FMCSA can renew exemptions at the end of each 2-year period.
On April 21, 2015, FMCSA published for public notice and comment, FMCSA 2012-0081 listing 15 individuals seeking exemptions for ICDs. Accordingly, the Agency has evaluated each applicant's request to determine whether granting an exemption will achieve the required level of safety mandated by statute.
The individuals included in this notice have requested an exemption from the provisions of 49 CFR 391.41(b)(4), which applies to drivers who operate CMVs in interstate commerce, as defined in 49 CFR 390.5. Section 391.41(b)(4) states that:
The FMCSA provides medical advisory criteria as recommendations for use by medical examiners in determining whether drivers with certain medical conditions, procedures, and/or treatments should be certified to operate CMVs in interstate commerce in accordance with the various physical qualification standards in 49 CFR part 391, subpart E. The advisory criteria are currently set out as part of the medical examination report published with 49 CFR 391.43. The advisory criteria for section 391.41(b)(4) provide that:
The term “has no current clinical diagnosis of” is specifically designed to encompass:
It is the intent of the FMCSRs to render unqualified, a driver who has a current cardiovascular disease which is accompanied by and/or likely to cause symptoms of syncope, dyspnea, collapse, or congestive cardiac failure. However, the subjective decision of whether the nature and severity of an individual's condition will likely cause symptoms of cardiovascular insufficiency is on an individual basis and qualification rests with the medical examiner and the motor carrier.
In the case of persons with ICDs, the underlying condition for which the ICD was implanted places the individual at high risk for syncope (a transient loss of consciousness) or other unpredictable events known to result in gradual or sudden incapacitation. ICDs may discharge, which could result in loss of ability to safely control a CMV. See the Evidence Report on Cardiovascular Disease and Commercial Motor vehicle Driver Safety, April 2007.
On April 21, 2015, FMCSA published in a
FMCSA acknowledges the commenters' reports of medical compliance and safe driving histories of the applicants. However, based on the available medical literature and data, FMCSA believes that drivers with an ICD are at risk for incapacitation if the device discharges in response to cardiovascular symptoms. This risk is combined with the risks associated with the underlying cardiovascular condition for which the ICD has been implanted as a primary or secondary preventive measure.
Mr. Leslie Mitchell no longer has a functioning ICD and may operate CMVs in interstate commerce based on the decision of the medical examiner. Mr. Mitchell has a pacemaker/ICD but the ICD portion was disabled because his cardiologist determined he no longer needs tachycardia therapy. Therefore, if a medical examiner determines that he meets the cardiovascular standard and all other physical qualification standards for operating a commercial motor vehicle in interstate commerce, he may be issued a medical certificate.
FMCSA evaluated the remaining 14 of 15 individual exemption requests on their merits, available data from Evidence Reports and Medical Expert Panel opinions on ICDs and commercial motor vehicle driving, and the public comments received. The Agency has determined that the available medical literature and data does not support a conclusion that granting these exemptions would achieve a level of safety equivalent to or greater than, the level of safety maintained without the exemptions. Each applicant has, prior to this notice, received a letter of final disposition on his/her exemption request. Those decision letters fully outlined the basis for the denial and constitute final Agency action. The list published today summarizes the Agency's recent denials as required under 49 U.S.C. 31315(b)(4).
The following 14 applicants are denied exemptions from the cardiovascular standard concerning ICDs.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice and request for comments; extension of comment period and announcement of a National Pipeline Mapping System Operator Technical Workshop.
PHMSA is sponsoring a one-day National Pipeline Mapping System (NPMS) operator technical workshop on November 18, 2015, at a Washington, DC area hotel. This notice also announces that the comment period for the 60-day information collection published on August 27, 2015, (80 FR 52084) is extended until November 25, 2015, in order to conduct this workshop that will provide PHMSA with important information as it prepares to improve the NPMS submission process to accept additional data.
The NPMS operator technical workshop will be held on November 18, 2015, at a Washington, DC-area hotel, from 8:00 a.m. to 5:00 p.m. The comment period for the 60-day information collection published on August 27, 2015 (80 FR 52084) is extended from October 26, 2015 to November 25, 2015.
The workshop location, and hotel information will be announced in PRIMIS at
Amy Nelson at 202-493-0591 or by email at
The purpose of the workshop is to discuss and understand existing and future NPMS submission technical issues such as (1) the format in which operators are storing the data that is submitted to the NPMS, (2) how pipe segmentation for the submissions is determined, (3) how data is submitted in a linear referencing format, and (4) options Geographic Information Systems technicians have when an attribute includes the word “predominant” (
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Comments will be posted without changes or edits to
ITS Joint Program Office, Office of the Assistant Secretary for Research and Technology, U.S. Department of Transportation.
Notice.
The Intelligent Transportation Systems (ITS) Program Advisory Committee (ITSPAC) will hold a teleconference on November 13, 2015, from 1:00 p.m. to 2:00 p.m. (EST).
The ITSPAC, established under section 5305 of Public Law 109-59, Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, August 10, 2005, and re-established under section 53003 of Public Law 112-141, Moving Ahead for Progress in the 21st Century, July 6, 2012, was created to advise the Secretary of Transportation on all matters relating to the study, development, and implementation of intelligent transportation systems. Through its sponsor, the ITS Joint Program Office (JPO), the ITSPAC makes recommendations to the Secretary regarding ITS Program needs, objectives, plans, approaches, content, and progress.
The following is a summary of the meeting tentative agenda: (1) Welcome, (2) Reflections on 2015 Advice Memorandum, (3) Planning for March 2016 Meeting, (4) Discussion of Topics for 2016 Advice Memorandum, (5) Summary and Adjourn.
The teleconference will be open to the public, but limited conference lines will be available on a first-come, first-served basis. Members of the public who wish to participate in the teleconference must submit a request to
Questions about the agenda or written comments may be submitted by U.S. Mail to: U.S. Department of Transportation, Office of the Assistant Secretary for Research and Technology, ITS Joint Program Office, Attention: Stephen Glasscock, 1200 New Jersey Avenue SE., HOIT, Washington, DC 20590 or faxed to (202) 493-2027. The ITS JPO requests that written comments be submitted not later than November 6, 2015.
Notice of this teleconference is provided in accordance with the Federal Advisory Committee Act and the General Services Administration regulations (41 CFR part 102-3) covering management of Federal advisory committees.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (OFAC) is publishing the names of one individual whose property and interests in property is blocked pursuant to Executive Order 13224 of September 23, 2001, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism.”
OFAC's action described in this notice is effective on October 20, 2015.
Associate Director for Global Targeting, tel.: 202/622-2420, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202/622-2490, Assistant Director for Licensing, tel.: 202/622-2480, Office of Foreign Assets Control, or Chief Counsel (Foreign Assets Control), tel.: 202/622-2410, Office of the General Counsel, Department of the Treasury (not toll free numbers).
The SDN List and additional information concerning OFAC sanctions programs are available from OFAC's Web site (
On October 20, 2015, OFAC blocked the property and interests in property of the following individual pursuant to E.O. 13224, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism”:
AGHA, Torek (a.k.a. AGHA, Torak; a.k.a. AGHA, Toriq; a.k.a. HASHAN, Sayed Mohammad; a.k.a. SAYED, Toriq Agha), Pashtunabad, Quetta, Pakistan; DOB 01 Jan 1964 to 31 Dec 1966; alt. DOB 01 Jan 1961 to 31 Dec 1963; alt. DOB 1960; POB Kandahar Province, Afghanistan; alt. POB Pishin, Balochistan Province, Pakistan; Identification Number 5430312277059 (Pakistan); Haji (individual) [SDGT] (Linked To: TALIBAN).
Notice is hereby given, pursuant to 5 U.S.C. App. 2, 10(a)(2), that a meeting will be held at the Hay-Adams Hotel, 16th Street and Pennsylvania Avenue NW., Washington, DC, on November 3, 2015 at 11:30 a.m. of the following debt management advisory committee:
Treasury Borrowing Advisory Committee of The Securities Industry and Financial Markets Association.
The agenda for the meeting provides for a charge by the Secretary of the Treasury or his designate that the Committee discuss particular issues and conduct a working session. Following the working session, the Committee will present a written report of its recommendations. The meeting will be closed to the public, pursuant to 5 U.S.C. App. 2, 10(d) and Public Law 103-202, § 202(c)(1)(B) (31 U.S.C. 3121 note).
This notice shall constitute my determination, pursuant to the authority placed in heads of agencies by 5 U.S.C. App. 2, 10(d) and vested in me by Treasury Department Order No. 101-05, that the meeting will consist of discussions and debates of the issues presented to the Committee by the Secretary of the Treasury and the making of recommendations of the Committee to the Secretary, pursuant to Public Law 103-202, § 202(c)(1)(B).
Thus, this information is exempt from disclosure under that provision and 5 U.S.C. 552b(c)(3)(B). In addition, the meeting is concerned with information that is exempt from disclosure under 5 U.S.C. 552b(c)(9)(A). The public interest requires that such meetings be closed to the public because the Treasury Department requires frank and full advice from representatives of the financial community prior to making its final decisions on major financing operations. Historically, this advice has been offered by debt management advisory committees established by the several major segments of the financial community. When so utilized, such a committee is recognized to be an advisory committee under 5 U.S.C. App. 2, 3.
Although the Treasury's final announcement of financing plans may not reflect the recommendations provided in reports of the Committee, premature disclosure of the Committee's deliberations and reports would be likely to lead to significant financial speculation in the securities market. Thus, this meeting falls within the exemption covered by 5 U.S.C. 552b(c)(9)(A).
Treasury staff will provide a technical briefing to the press on the day before the Committee meeting, following the release of a statement of economic conditions and financing estimates. This briefing will give the press an opportunity to ask questions about financing projections. The day after the Committee meeting, Treasury will release the minutes of the meeting, any charts that were discussed at the meeting, and the Committee's report to the Secretary.
The Office of Debt Management is responsible for maintaining records of debt management advisory committee meetings and for providing annual reports setting forth a summary of Committee activities and such other matters as may be informative to the public consistent with the policy of 5 U.S.C. 552(b). The Designated Federal Officer or other responsible agency official who may be contacted for additional information is Fred Pietrangeli, Director for Office of Debt Management (202) 622-1876.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before November 25, 2015.
Submit written comments on the collection of information through
Crystal Rennie, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-7492 or email
(a) VA Forms 21P-4706b and 4706c are used by estate to determine proper usage of benefits paid to fiduciaries. The 21P-4706b are both necessary to conform to requirement of various State courts.
(b) VA Form 21-4718a—Fiduciaries are required to obtain certifications that the balances remaining on deposit in financial institutions as shown on accountings are correct. Certifying official at a financial institution completing the form must affix the institution's official seal or stamp. The data collected is used to appoint an appropriate fiduciary for a VA beneficiary and to prevent fiduciaries from supplying false certification, embezzling funds, and possibly prevent and/or identify fraud, waste and abuse of government funds paid to fiduciaries on behalf of VA beneficiaries.
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
(a) 21P-4706b: 12,600.
(b) 21P-4706c: 3,500.
(c) 21-4718a: 1,750.
(a) 21P-4706b: 27 minutes.
(b) 21P-4706c: 30 minutes.
(c) 21-4718: 3 minutes.
By direction of the Secretary.
Environmental Protection Agency (EPA).
Final rule.
Based on its review of the air quality criteria for ozone (O
The final rule is effective on December 28, 2015.
EPA has established a docket for this action (Docket ID No. EPA-HQ-OAR-2008-0699) and a separate docket, established for the Integrated Science Assessment (ISA) (Docket No. EPA-HQ-ORD-2011-0050), which has been incorporated by reference into the rulemaking docket. All documents in the docket are listed on the
Ms. Susan Lyon Stone, Health and Environmental Impacts Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail code C504-06, Research Triangle Park, NC 27711; telephone: (919) 541-1146; fax: (919) 541-0237; email:
A number of the documents that are relevant to this action are available through the EPA's Office of Air Quality Planning and Standards (OAQPS) Technology Transfer Network (TTN) Web site (
The following topics are discussed in this preamble:
This section summarizes information about the purpose of this regulatory action, the major provisions of this action, and provisions related to implementation.
Sections 108 and 109 of the Clean Air Act (CAA) govern the establishment, review, and revision, as appropriate, of the NAAQS to protect public health and welfare. The CAA requires the EPA to periodically review the air quality criteria—the science upon which the standards are based—and the standards themselves. This rulemaking is being conducted pursuant to these statutory requirements. The schedule for completing this review is established by a federal court order, which requires that the EPA make a final determination by October 1, 2015.
The EPA completed its most recent review of the NAAQS for O
In subsequent litigation, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) upheld the EPA's 2008 primary standard but remanded the 2008 secondary standard (
This final action reflects the Administrator's conclusions based on a review of the O
The EPA proposed revisions to the primary and secondary O
In this rulemaking, the EPA is revising the suite of standards for O
With regard to the primary standard, the EPA is revising the level of the standard to 0.070 ppm to provide increased public health protection against health effects associated with long- and short-term exposures. The EPA is retaining the indicator (O
The decisions on the adequacy of the current standard and the appropriate level for the revised standard are based on an integrative assessment of an extensive body of new scientific evidence, which substantially strengthens what was known about O
The EPA is also revising the level of the secondary standard to 0.070 ppm to provide increased protection against vegetation-related effects on public welfare. The EPA is retaining the indicator (O
In making this decision on the secondary standard, the Administrator focuses on O
As directed by the CAA, reducing pollution to meet NAAQS always has been a shared task, one involving the federal government, states, tribes and local air agencies. This partnership has proved effective since the EPA first issued O
In addition to revising the primary and secondary standards, this action is changing the AQI to reflect the revisions to the primary standard and also making corresponding revisions in data handling conventions for O
Two sections of the CAA govern the establishment and revision of the NAAQS. Section 108 (42 U.S.C. 7408) directs the Administrator to identify and list certain air pollutants and then to issue air quality criteria for those pollutants. The Administrator is to list those air pollutants that in her “judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare;” “the presence of which in the ambient air results from numerous or diverse mobile or stationary sources;” and “for which . . . [the Administrator] plans to issue air quality criteria . . . .” Air quality criteria are intended to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of [a] pollutant in the ambient air . . .” 42 U.S.C. 7408(b). Section 109 (42 U.S.C. 7409) directs the Administrator to propose and promulgate “primary” and “secondary” NAAQS for pollutants for which air quality criteria are issued. Section 109(b)(1) defines a primary standard as one “the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health.”
The requirement that primary standards provide an adequate margin of safety was intended to address uncertainties associated with inconclusive scientific and technical information available at the time of standard setting. It was also intended to provide a reasonable degree of protection against hazards that research has not yet identified. See
In addressing the requirement for an adequate margin of safety, the EPA considers such factors as the nature and severity of the health effects, the size of sensitive population(s)
In setting primary and secondary standards that are “requisite” to protect public health and welfare, respectively, as provided in section 109(b), the EPA's task is to establish standards that are neither more nor less stringent than necessary for these purposes. In so doing, the EPA may not consider the costs of implementing the standards. See generally,
Section 109(d)(1) requires that “not later than December 31, 1980, and at 5-year intervals thereafter, the Administrator shall complete a thorough review of the criteria published under section 108 and the national ambient air quality standards . . . and shall make such revisions in such criteria and standards and promulgate such new standards as may be appropriate . . . .” Section 109(d)(2) requires that an independent scientific review committee “shall complete a review of the criteria . . . and the national primary and secondary ambient air quality standards . . . and shall recommend to the Administrator any new . . . standards and revisions of existing criteria and standards as may be appropriate . . . .” Since the early 1980's, the CASAC
States are primarily responsible for ensuring attainment and maintenance of NAAQS once the EPA has established them. The EPA performs an oversight function, and as necessary takes actions to ensure CAA objectives are achieved. Under section 110 of the CAA, and related provisions, states submit, for the EPA's approval, state implementation plans (SIPs) that provide for the attainment and maintenance of such standards through control programs directed to sources of the relevant pollutants. The states, in conjunction with the EPA, also administer the PSD program (CAA sections 160 to 169) which is a pre-construction permit program designed to prevent significant deterioration in air quality. In addition, federal programs provide for nationwide reductions in emissions of O
After the EPA establishes a new or revised NAAQS, the CAA directs the EPA and the states to take steps to ensure that the new or revised NAAQS are met. One of the first steps, known as the initial area designations, involves identifying areas of the country that are not meeting the new or revised NAAQS along with the nearby areas that contain emissions sources that contribute to the areas not meeting the NAAQS. For areas designated “nonattainment,” the responsible states are required to develop SIPs to attain the standards. In developing their attainment plans, states first take into account projected emission reductions from federal and state rules that have been already adopted at the time of plan submittal. A number of significant emission reduction programs that will lead to reductions of O
The EPA first established primary and secondary NAAQS for photochemical oxidants in 1971 (36 FR 8186, April 30, 1971). The EPA set both primary and secondary standards at 0.08 ppm,
Following the EPA's decision in the 1979 review, the city of Houston challenged the Administrator's decision arguing that the standard was arbitrary and capricious because natural O
In 1982, the EPA announced plans to revise the 1978 AQCD (47 FR 11561; March 17, 1982), and, in 1983, the EPA initiated the second periodic review of the O
In the 1992 notice of its proposed decision in that review, the EPA announced its intention to proceed as rapidly as possible with the next review of the air quality criteria and standards for O
On May 14, 1999, in response to challenges by industry and others to the EPA's 1997 decision, the D.C. Circuit remanded the O
Specifically, in
Independently of the litigation, the EPA responded to the court's remand to consider the potential beneficial health effects of O
The EPA initiated the fourth periodic review of the air quality criteria and standards for O
In May 2008, state, public health, environmental, and industry petitioners filed suit challenging the EPA's final decision on the 2008 O
On January 2010, the EPA issued a notice of proposed rulemaking to reconsider the 2008 final decision (75 FR 2938, January 19, 2010). In that notice, the EPA proposed that further revisions of the primary and secondary standards were necessary to provide a requisite level of protection to public health and welfare. The EPA proposed to revise the level of the primary standard from 0.075 ppm to a level within the range of 0.060 to 0.070 ppm, and to revise the secondary standard to one with a cumulative, seasonal form. At the EPA's request, the CASAC reviewed the proposed rule at a public teleconference on January 25, 2010 and provided additional advice in early 2011 (Samet, 2010, 2011). After considering comments from CASAC and the public, the EPA prepared a draft final rule, which was submitted for interagency review pursuant to Executive Order 12866. On September 2, 2011, consistent with the direction of the President, the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), returned the draft final rule to the EPA for further consideration. In view of this return and the fact that the Agency's next periodic review of the O
In light of the EPA's decision to consolidate the reconsideration with the current review, the D.C. Circuit proceeded with the litigation on the 2008 final decision. On July 23, 2013, the court upheld the EPA's 2008 primary O
The court went on to reject arguments that the EPA should have adopted a more stringent primary standard. Dismissing arguments that a clinical study (as properly interpreted by the EPA) showing effects at 0.06 ppm necessitated a standard level lower than that selected, the court noted that this was a single, limited study (
The court also rejected arguments that an 8-hour primary standard of 0.075 ppm failed to provide an adequate margin of safety, noting that margin of safety considerations involved policy judgments by the agency, and that by setting a standard “appreciably below” the level of the current standard (0.08 ppm), the agency had made a reasonable policy choice (
With respect to the secondary standard, the court held that the EPA's justification for setting the secondary standard identical to the revised 8-hour primary standard violated the CAA because the EPA had not adequately explained how that standard provided the required public welfare protection. The court thus remanded the secondary standard to the EPA (
At the time of the court's decision, the EPA had already completed significant portions of its next statutorily required periodic review of the O
In preparing the first draft ISA, the EPA's National Center for Environmental Assessment (NCEA) considered CASAC and public comments on the IRP, and also comments received from a workshop held on August 6, 2010, to review and discuss preliminary drafts of key ISA sections (75 FR 42085, July 20, 2010). In 2011, the first draft ISA was released for public comment and for review by CASAC at a public meeting on May 19-20, 2011 (U.S. EPA, 2011b; 76 FR 10893, February 28, 2011; 76 FR 23809, April 28, 2011). Based on CASAC and public comments, NCEA prepared a second draft ISA, which was released for public comment and CASAC review (U.S. EPA, 2011c; 76 FR 60820, September 30, 2011). The CASAC reviewed this draft at a January 9-10, 2012, public meeting (76 FR 236, December 8, 2011). Based on CASAC and public comments, NCEA prepared a third draft ISA (U.S. EPA, 2012; 77 FR 36534, June 19, 2012), which was reviewed at a CASAC meeting in September 2012. The EPA released the final ISA in February 2013 (U.S. EPA, 2013).
The EPA presented its plans for conducting Risk and Exposure Assessments (REAs) for health risk and exposure (HREA) and welfare risk and exposure (WREA) in two documents that outlined the scope and approaches for use in conducting quantitative assessments, as well as key issues to be addressed as part of the assessments (U.S. EPA, 2011d, e). The EPA released these documents for public comment in April 2011, and consulted with CASAC on May 19-20, 2011 (76 FR 23809, April 28, 2011). The EPA considered CASAC advice and public comments in further planning for the assessments, issuing a memo that described changes to elements of the REA plans and brief explanations regarding them (Samet, 2011; Wegman, 2012).
In July 2012, the EPA made the first drafts of the Health and Welfare REAs available for CASAC review and public comment (77 FR 42495, July 19, 2012; 77 FR 51798, August 27, 2012). The first draft PA was made available for CASAC review and public comment in August 2012 (77 FR 42495, July 19, 2012; 77 FR 51798, August 27, 2012).
The proposed decision (henceforth “proposal”) on this review of the O
The schedule for completion of this review is governed by a court order resolving a lawsuit filed in January 2014 by a group of plaintiffs who alleged that the EPA had failed to perform its mandatory duty, under section 109(d)(1), to complete a review of the O
As in prior NAAQS reviews, the EPA is basing its decision in this review on studies and related information included in the ISA, REAs and PA, which have undergone CASAC and public review. The studies assessed in the ISA and PA, and the integration of the scientific evidence presented in them, have undergone extensive critical review by the EPA, the CASAC, and the public. The rigor of that review makes these studies, and their integrative assessment, the most reliable source of scientific information on which to base decisions on the NAAQS, decisions that all parties recognize as of great import. NAAQS decisions can have profound impacts on public health and welfare, and NAAQS decisions should be based on studies that have been rigorously assessed in an integrative manner not only by the EPA but also by the statutorily mandated independent advisory committee, as well as the public review that accompanies this process. Some commenters have referred to and discussed individual scientific studies on the health and welfare effects of O
The decision to rely on studies and related information included in the ISA, REAs and PA, which have undergone CASAC and public review, is consistent with the EPA's practice in prior NAAQS reviews and its interpretation of the requirements of the CAA. Since the 1970 amendments, the EPA has taken the view that NAAQS decisions are to be based on scientific studies and related information that have been assessed as a part of the pertinent air quality criteria, and the EPA has consistently followed this approach. This longstanding interpretation was strengthened by new legislative requirements enacted in 1977, which added section 109(d)(2) of the Act concerning CASAC review of air quality criteria. See 71 FR 61144, 61148 (October 17, 2006) (final decision on review of NAAQS for particulate matter) for a detailed discussion of this issue and the EPA's past practice.
As discussed in the EPA's 1993 decision not to revise the NAAQS for O
Accordingly, the EPA is basing the final decisions in this review on the studies and related information included in the O
Ozone is formed near the earth's surface due to chemical interactions involving solar radiation and precursor pollutants including volatile organic compounds (VOCs) and NO
In order to continuously assess O
One of the challenging aspects of developing plans to address high O
At present, both the primary and secondary NAAQS use the annual fourth-highest daily maximum 8-hour concentration, averaged over 3 years, as the form of the standard. An additional metric, the W126 exposure index, is often used to assess impacts of O
In addition to being affected by changing emissions, future O
Another challenging aspect of this air quality issue is the impact from sources of O
For reasons discussed in the proposal, the Administrator proposed to revise the
With regard to the secondary standard, the Administrator proposed to revise the level of the current secondary standard to within the range of 0.065 to 0.070 ppm, which air quality analyses indicate would provide cumulative, seasonal air quality or exposure values, in terms of 3-year average W126 index values, at or below a range of 13-17 ppm-hours.
The EPA also proposed to make corresponding revisions in data handling conventions for O
This action presents the Administrator's final decisions in the current review of the primary and secondary O
The primary standard is addressed in section II. Corresponding changes to the AQI are addressed in section III. The secondary standard is addressed in section IV. Related data handling conventions and exceptional events are addressed in section V. Updates to the monitoring regulations are addressed in section VI. Implementation activities, including PSD-related actions, are addressed in sections VII and VIII. Section IX addresses applicable statutory and executive order reviews.
This section presents the Administrator's final decisions regarding the need to revise the existing primary O
Section II.A below summarizes the information presented in the proposal regarding O
As discussed in section II.A of the proposal (79 FR 75243-75246, December 17, 2014), the EPA's approach to informing decisions on the primary O
Section II.A.1 below summarizes the information presented in the proposal regarding O
The health effects of O
The clearest evidence for health effects associated with exposure to O
Additionally, the ISA determined that the relationships between short-term exposures to O
Consistent with emphasis in past reviews on O
The information highlighted here is based on the assessment of the evidence in the ISA (U.S. EPA, 2013, Chapters 4 to 8) and consideration of that evidence in the PA (U.S. EPA, 2014c, Chapters 3 and 4) on the known or potential effects on public health which may be expected from the presence of O
This section briefly summarizes the characterization of the key events and pathways that contribute to health effects resulting from O
Experimental evidence elucidating modes of action and/or mechanisms contributes to our understanding of the biological plausibility of adverse O
Secondary oxidation products initiate numerous responses at the cellular, tissue, and whole organ level of the respiratory system. These responses include the activation of neural reflexes which leads to lung function decrements; initiation of pulmonary inflammation; alteration of barrier epithelial function; sensitization of bronchial smooth muscle; modification of lung host defenses; airways remodeling; and modulation of autonomic nervous function which may alter cardiac function (U.S. EPA, 2013, section 5.3, Figure 5-8).
Persistent inflammation and injury, which are observed in animal models of chronic and quasi-continuous exposure to O
Responses to O
This section briefly summarizes the information presented in the proposal on respiratory effects attributable to short-term exposures (II.A.1.b.i), respiratory effects attributable to long-
Controlled human exposure, animal toxicological, and epidemiologic studies available in the last review provided clear, consistent evidence of a causal relationship between short-term O
Key aspects of this evidence are discussed below with regard to (1) lung function decrements; (2) pulmonary inflammation, injury, and oxidative stress; (3) airway hyperresponsiveness; (4) respiratory symptoms and medication use; (5) lung host defense; (6) allergic and asthma-related responses; (7) hospital admissions and emergency department visits; and (8) respiratory mortality.
Lung function decrements are typically measured by spirometry and refer to reductions in the maximal amount of air that can be forcefully exhaled. Forced expiratory volume in 1 second (FEV
As described in the proposal (79 FR 75250), the ISA focuses on individuals with >10% decrements in FEV
This review has marked an advance in the ability to make reliable quantitative predictions of the potential lung function response to O
Epidemiologic studies have consistently linked short-term increases in ambient O
Several epidemiologic panel studies
As described in the proposal (79 FR 75251), several epidemiologic panel studies provided information on potential confounding by copollutants and most O
As described in detail in section II.B.2.a.ii of the proposal (79 FR 75252), O
Inflammation induced by exposure of humans to O
Building on the last review, recent studies continue to support the evidence for airway inflammation and injury with new evidence for such effects following exposures to lower concentrations than had been evaluated previously. These studies include recent controlled human exposure and epidemiologic studies and are discussed more below.
An extensive body of evidence from controlled human exposure studies, described in section II.B.2.a.ii of the proposal, indicates that short-term exposures to O
As with FEV
In the previous review (U.S. EPA, 2006a), the epidemiologic evidence of O
A strong body of controlled human exposure and animal toxicological studies, most of which were available in the last review of the O
Respiratory symptoms are associated with adverse outcomes such as limitations in activity, and are the primary reason for people with asthma to use quick relief medication and to seek medical care. Studies evaluating the link between O
The link between subjective respiratory symptoms and O
As noted in section II.B.2.a.iv in the proposal (79 FR 75255), the findings for O
Most epidemiologic studies of O
Available evidence indicates that O
In summary, both controlled human exposure and epidemiologic studies have reported respiratory symptoms attributable to short-term O
The mammalian respiratory tract has a number of closely integrated defense mechanisms that, when functioning normally, provide protection from the potential health effects of exposures to a wide variety of inhaled particles and microbes. Based on toxicological and human exposure studies, in the last review EPA concluded that available evidence indicates that short-term O
Relatively few studies conducted since the last review have evaluated the effects of O
Evidence from controlled human exposure and epidemiologic studies available in the last review indicates that O
The 2006 AQCD concluded that “the overall evidence supports a causal relationship between acute ambient O
The results of recent studies largely support the conclusions of the 2006 AQCD (U.S. EPA, 2013, section 6.2.7). Since the completion of the 2006 AQCD, relatively fewer studies, conducted in the U.S., Canada, and Europe, have evaluated associations between short-term O
In considering this body of evidence, the ISA focused primarily on multicity studies because they examine associations with respiratory-related hospital admissions and emergency department visits over large geographic areas using consistent statistical methodologies (U.S. EPA, 2013, section 6.2.7.1). The ISA also focused on single-city studies that encompassed a large number of daily hospital admissions or emergency department visits, included long study-durations, were conducted in locations not represented by the larger studies, or examined population-specific characteristics that may impact the risk of O
The collective evidence across studies indicates a mostly consistent positive association between O
In the last review, studies had not evaluated the concentration-response relationship between short-term O
Evidence from experimental studies indicates multiple potential pathways of respiratory effects from short-term O
Recent multicity studies from the U.S. (Zanobetti and Schwartz, 2008), Europe (Samoli et al., 2009), Italy (Stafoggia et al., 2010), and Asia (Wong et al., 2010), as well as a multi-continent study (Katsouyanni et al., 2009), reported associations between short-term O
Of the studies evaluated, only two studies analyzed the potential for copollutant confounding of the O
The evidence for associations between short-term O
Since the last review, the body of evidence indicating the occurrence of respiratory effects due to long-term O
Asthma is a heterogeneous disease with a high degree of temporal variability. The onset, progression, and symptoms can vary within an individual's lifetime, and the course of asthma may vary markedly in young children, older children, adolescents, and adults. In the previous review, longitudinal cohort studies that examined associations between long-term O
In children, the relationship between long-term O
In the 2006 AQCD (U.S. EPA, 2006a), studies on O
In the 2006 AQCD (U.S. EPA, 2006a), few epidemiologic studies had investigated the effect of chronic O
Long-term studies in animals allow for greater insight into the potential effects of prolonged exposure to O
Collectively, evidence from animal studies strongly suggests that chronic O
A limited number of epidemiologic studies have assessed the relationship between long-term exposure to O
In a recent follow-up analysis of the American Cancer Society cohort (Jerrett et al., 2009), cardiopulmonary deaths were separately subdivided into respiratory and cardiovascular deaths, rather than combined as in the Pope et al. (2002) work. Increased O
A relatively small number of studies have examined the potential effect of short-term O
More recently, the body of scientific evidence available that has examined the effect of O
Controlled human exposure studies discussed in previous reviews have not demonstrated any consistent extrapulmonary effects. In this review, evidence from controlled human exposure studies suggests cardiovascular effects in response to short-term O
Overall, the ISA concludes that the available body of epidemiologic evidence examining the relationship between short-term exposures to O
Despite the inconsistent evidence for an association between O
The 2006 AQCD concluded that the overall body of evidence was highly suggestive that short-term exposure to O
The evaluation of new multicity studies that examined the association between short-term O
The 2006 AQCD reviewed a large number of time-series studies of associations between short-term O
Recent studies have strengthened the body of evidence that supports the association between short-term O
In the previous review, multiple uncertainties remained regarding the relationship between short-term O
In particular, recent studies have evaluated different statistical approaches to examine the shape of the O
In making judgments as to when various O
There is also a more specific consideration of population risk in the 2000 guidance. Specifically, the committee considered that a shift in the risk factor distribution, and hence the risk profile of the exposed population, should be considered adverse, even in the absence of the immediate occurrence of frank illness (ATS, 2000a, p. 668). For example, a population of asthmatics could have a distribution of lung function such that no individual has a level associated with clinically important impairment. Exposure to air pollution could shift the distribution to lower levels of lung function that still do not bring any individual to a level that is associated with clinically relevant effects. However, this would be considered to be adverse because individuals within the population would already have diminished reserve function, and therefore would be at increased risk to further environmental insult (ATS, 2000a, p. 668).
The ATS also concluded in its guidance that elevations of biomarkers such as cell numbers and types, cytokines, and reactive oxygen species may signal risk for ongoing injury and more serious effects or may simply represent transient responses, illustrating the lack of clear boundaries that separate adverse from nonadverse events. More subtle health outcomes also may be connected mechanistically to health effects that are clearly adverse, so that small changes in physiological measures may not appear clearly adverse when considered alone, but may be part of a coherent and biologically plausible chain of related health outcomes that include responses that are clearly adverse, such as mortality (U.S. EPA, 2014c, section 3.1.2.1).
Application of the ATS guidelines to the least serious category of effects
For the purpose of estimating potentially adverse lung function decrements in active healthy people, the CASAC panel in the 2008 O
For the purpose of estimating potentially adverse lung function decrements in people with lung disease, the CASAC panel in the 2008 O
In judging the extent to which these impacts represent effects that should be regarded as adverse to the health status of individuals, in previous NAAQS reviews, the EPA has also considered whether effects were experienced repeatedly during the course of a year or only on a single occasion (U.S. EPA, 2007). While some experts would judge single occurrences of moderate responses to be a “nuisance,” especially for healthy individuals, a more general consensus view of the adversity of such moderate responses emerges as the frequency of occurrence increases. In particular, not every estimated occurrence of an O
The currently available evidence expands the understanding of populations that were identified to be at greater risk of O
There are multiple avenues by which groups may experience increased risk for O
One consideration in the assessment of potential public health impacts is the size of various population groups for which there is adequate evidence of increased risk for health effects associated with O
With regard to asthma, Table 3-7 in the PA (U.S. EPA, 2014c, section 3.1.5.2) summarizes information on the prevalence of current asthma by age in the U.S. adult population in 2010 (Schiller et al. 2012; children—Bloom et al., 2011). Individuals with current asthma constitute a fairly large proportion of the population, including more than 25 million people. Asthma prevalence tends to be higher in children than adults. Within the U.S., approximately 8.2% of adults have reported currently having asthma (Schiller et al., 2012) and 9.5% of
With regard to lifestages, based on U.S. census data from 2010 (Howden and Meyer, 2011), about 74 million people, or 24% of the U.S. population, are under 18 years of age and more than 40 million people, or about 13% of the U.S. population, are 65 years of age or older. Hence, a large proportion of the U.S. population (
With regard to outdoor workers, in 2010, approximately 11.7% of the total number of people (143 million people) employed, or about 16.8 million people, worked outdoors one or more days per week (based on worker surveys).
While it is difficult to estimate the total number of people in groups that are at greater risk from exposure to O
To put judgments about health effects into a broader public health context, the EPA has developed and applied models to estimate human exposures to O
As discussed in section II.C.1 of the proposal (79 FR 75270), the HREA uses a photochemical model to estimate sensitivities of O
As discussed in Chapter 4 of the HREA (U.S. EPA, 2014a), this approach to adjusting air quality models the physical and chemical atmospheric processes that influence ambient O
Within urban study areas, the model-based air quality adjustments show reductions in the O
As discussed in the PA (U.S. EPA, 2014c, section 3.2.1), adjusted patterns of O
To evaluate uncertainties in air quality adjustments, the HREA assessed the extent to which the modeled O
To evaluate the first issue, the HREA conducted a national analysis evaluating trends in monitored ambient O
To evaluate the second issue, the HREA assessed the O
As discussed in section II.C.2 of the proposal, the O
The HREA estimates 8-hour exposures at or above benchmark concentrations of 60, 70, and 80 ppb for individuals engaged in moderate or greater exertion (
In considering estimates of O
Although exposure estimates differ between children and adults, the patterns of results across the urban study areas and years are similar among all of the populations evaluated (U.S. EPA, 2014a, Figures 5-5 to 5-8). Therefore, while the PA highlights estimates in children, including asthmatic school-age children, it also notes that the patterns of exposures estimated for children represent the patterns estimated for adult asthmatics and older adults.
Table 1 of the proposal (79 FR 75272 to 75273) summarizes key results from the exposure assessment. This table is reprinted below.
Uncertainties in exposure estimates are summarized in section II.C.2.b of the proposal (79 FR 75273). For example, due to variability in responsiveness, only a subset of individuals who experience exposures at or above a benchmark concentration can be expected to experience health effects.
Another important uncertainty is that there is very limited evidence from controlled human exposure studies, which provided the basis for health benchmark concentrations for both exposures of concern and lung function decrements, related to clinical responses in at-risk populations. Compared to the healthy young adults included in the controlled human exposure studies, members of at-risk populations could be more likely to experience adverse effects, could experience larger and/or more serious effects, and/or could experience effects following exposures to lower O
There are also uncertainties associated with the exposure modelling. These are described most fully, and their potential impact characterized, in section 5.5.2 of the HREA (U.S. EPA, 2013, pp. 5-72 to 5-79). These include interpretation of activity patterns set forth in diaries which do not typically distinguish the basis for activity patterns and so may reflect averting behavior,
As discussed in section II.C.3 of the proposal (79 FR 75274), for some health endpoints, there is sufficient scientific evidence and information available to support the development of quantitative estimates of O
The HREA estimates risks of lung function decrements in school-aged children (ages 5 to 18), asthmatic school-aged children, and the general adult population for the 15 urban study areas. The results presented in the HREA are based on an updated dose-threshold model that estimates FEV
Table 2 in the proposal (79 FR 75275), and reprinted below, summarizes key results from the lung function risk assessment. Table 2 presents estimates of the percentages of school-aged children estimated to experience O
Uncertainties in estimates of lung function risks are summarized in section II.C.3.a.ii of the proposal (79 FR 75275). In addition to the uncertainties noted for exposure estimates, an uncertainty which impacts lung function risk estimates stems from the lack of exposure-response information in children. In the near absence of controlled human exposure data for children, risk estimates are based on the assumption that children exhibit the same lung function response following O
A related source of uncertainty is that the risk assessment estimates of O
As discussed in section II.C.3.b of the proposal (79 FR 75276), the HREA estimates O
In considering the epidemiology-based risk estimates, the proposal focuses on mortality risks associated with short-term O
Important uncertainties in epidemiology-based risk estimates, based on their consideration in the HREA and PA, are discussed in section II.C.3.b.ii of the proposal (79 FR 75277). Compared to estimates of O
The PA notes that reducing NO
The HREA conducted national air quality modeling analyses that estimated the proportion of the U.S. population living in locations where seasonal averages of daily O
Section 7.4 of the HREA also highlights some additional uncertainties associated with epidemiologic-based risk estimates (U.S. EPA, 2014a). This section of the HREA identifies and discusses sources of uncertainty and presents a qualitative evaluation of key parameters that can introduce uncertainty into risk estimates (U.S. EPA, 2014a, Table 7-4). For several of these parameters, the HREA also presents quantitative sensitivity analyses (U.S. EPA, 2014a, sections 7.4.2 and 7.5.3). Of the uncertainties discussed in Chapter 7 of the HREA, those related to the application of concentration-response functions from epidemiologic studies can have particularly important implications for consideration of epidemiology-based risk estimates, as discussed below.
An important uncertainty is the shape of concentration-response functions at low ambient O
A related consideration is associated with the public health importance of the increases in relatively low O
The initial issue to be addressed in the current review of the primary O
In evaluating whether it is appropriate to retain or revise the current standard, the Administrator's considerations build upon those in the 2008 review, including consideration of the broader body of scientific evidence and exposure and health risk information now available, as summarized in sections II.A to II.C (79 FR 75246-75279) of the proposal and section II.A above.
In developing conclusions on the adequacy of the current primary O
The Administrator's consideration of the evidence and exposure/risk information is informed by the considerations and conclusions presented in the PA (U.S. EPA, 2014c). The purpose of the PA is to help “bridge the gap” between the scientific and technical information assessed in the ISA and HREA, and the policy decisions that are required of the Administrator (U.S. EPA, 2014c, Chapter 1); see also
In considering the available scientific evidence, the PA evaluates the O
Section II.D.1.a of the proposal discusses the PA's consideration of the evidence from controlled human exposure and panel studies. This evidence is assessed in section 6.2 of the ISA (U.S. EPA, 2013) and is summarized in section 3.1.2 of the PA (U.S. EPA, 2014c). A large number of controlled human exposure studies have reported lung function decrements, respiratory symptoms, air inflammation, airway hyperresponsiveness, and/or impaired lung host defense in young, healthy adults engaged in moderate quasi-continuous exertion, following 6.6-hour O
Based on this evidence, the PA notes that controlled human exposure studies have reported a variety of respiratory effects in young, healthy adults following exposures to a wide range of O
The PA also notes consistent results in some panel studies of O
Section II.D.1.b of the proposal summarizes the PA's analyses of monitored O
(1) A single-city study reported positive and statistically significant associations with asthma emergency department visits in children and adults in Seattle, a location that would have met the current standard over the entire study period (Mar and Koenig, 2009).
(2) Additional single-city studies support associations with respiratory morbidity at relatively low ambient O
(3) Canadian multicity studies reported positive and statistically significant associations with respiratory morbidity or mortality when the majority of study cities, though not all study cities, would have met the current standard over the study period in each of these studies (Cakmak et al., 2006; Dales et al., 2006; Katsouyanni et al., 2009; Stieb et al., 2009).
(4) A U.S. multicity study reported positive and statistically significant associations with mortality when ambient O
The PA also takes into account important uncertainties in these analyses of air quality in locations of epidemiologic study areas. These uncertainties are summarized in section II.D.1.b.iii of the proposal. Briefly, they include the following: (1) Uncertainty in conclusions about the extent to which multicity effect estimates reflect associations with air quality meeting the current standard, versus air quality violating that standard; (2) uncertainty regarding the potential for thresholds to exist, given that regional heterogeneity in O
In considering the analyses of monitored O
In order to further inform judgments about the potential public health implications of the current O
Section II.D.2.a of the proposal summarizes key observations from the PA regarding estimates of O
The 80 ppb-8hr benchmark level represents an exposure level for which there is substantial clinical evidence demonstrating a range of ozone-related effects including lung inflammation and airway responsiveness in healthy individuals. The 70 ppb-8hr benchmark level reflects the fact that in healthy subjects, decreases in lung function and respiratory symptoms occur at concentrations as low as 72 ppb and that these effects almost certainly occur in some people, including asthmatics and others with low lung function who are less tolerant of such effects, at levels of 70 ppb and below. The 60 ppb-8hr benchmark level represents the lowest exposure level at which ozone-
For exposures of concern at or above 60 ppb, the proposal highlights the following key observations for air quality adjusted to just meet the current standard:
(1) On average over the years 2006 to 2010, the current standard is estimated to allow approximately 10 to 18% of children in urban study areas to experience one or more exposures of concern at or above 60 ppb. Summing across urban study areas, these percentages correspond to almost 2.5 million children experiencing approximately 4 million exposures of concern at or above 60 ppb during a single O
(2) On average over the years 2006 to 2010, the current standard is estimated to allow approximately 3 to 8% of children in urban study areas to experience two or more exposures of concern to O
(3) In the worst-case years (
For exposures of concern at or above 70 ppb, the PA highlights the following key observations for air quality adjusted to just meet the current standard:
(1) On average over the years 2006 to 2010, the current standard is estimated to allow up to approximately 3% of children in urban study areas to experience one or more exposures of concern at or above 70 ppb. Summing across urban study areas, almost 400,000 children (including almost 40,000 asthmatic children) are estimated to experience O
(2) On average over the years 2006 to 2010, the current standard is estimated to allow less than 1% of children in urban study areas to experience two or more exposures of concern to O
(3) In the worst-case location and year, the current standard is estimated to allow approximately 8% of children to experience one or more exposures of concern at or above 70 ppb, and approximately 2% to experience two or more exposures of concern, at or above 70 ppb.
Uncertainties in exposure estimates are summarized in section II.C.2.b of the proposal (79 FR 75273), and discussed more fully in the HREA (U.S. EPA, 2014a, section 5.5.2) and the PA (U.S. EPA, 2014c, section 3.2.2). Key uncertainties include the variability in responsiveness following O
Section II.D.2.b of the proposal summarizes key observations from the PA regarding the estimated risk of O
With regard to decrements ≥10%, the PA highlights the following key observations for air quality adjusted to just meet the current standard:
(1) On average over the years 2006 to 2010, the current standard is estimated to allow approximately 14 to 19% of children in urban study areas to experience one or more lung function decrements ≥10%. Summing across urban study areas, this corresponds to approximately 3 million children experiencing 15 million O
(2) On average over the years 2006 to 2010, the current standard is estimated to allow approximately 7 to 12% of children in urban study areas to experience two or more O
(3) In the worst-case years, the current standard is estimated to allow approximately 17 to 23% of children in urban study areas to experience one or more lung function decrements ≥10%, and approximately 10 to 14% to experience two or more O
(1) On average over the years 2006 to 2010, the current standard is estimated to allow approximately 3 to 5% of children in urban study areas to experience one or more lung function decrements ≤15%. Summing across urban study areas, this corresponds to approximately 800,000 children (including approximately 80,000 asthmatic children) estimated to experience at least one O
(2) On average over the years 2006 to 2010, the current standard is estimated to allow approximately 2 to 3% of children in urban study areas to experience two or more O
(3) In the worst-case years, the current standard is estimated to allow approximately 4 to 6% of children in urban study areas to experience one or more lung function decrements ≤15%, and approximately 2 to 4% to experience two or more O
With regard to decrements ≤20%, the PA highlights the following key observations for air quality adjusted to just meet the current standard:
(1) On average over the years 2006 to 2010, the current standard is estimated to allow approximately 1 to 2% of children in urban study areas to experience one or more lung function decrements ≥20%. Summing across
(2) On average over the years 2006 to 2010, the current standard is estimated to allow less than 1% of children in urban study areas to experience two or more O
(3) In the worst-case years, the current standard is estimated to allow approximately 2 to 3% of children to experience one or more lung function decrements ≥20%, and less than 2% to experience two or more O
Section II.D.2.c of the proposal summarizes key observations from the PA regarding risk estimates of O
(1) When air quality was adjusted to the current standard for the 2007 model year (the year with generally “higher” O
(2) In focusing on total risk, the current standard is estimated to allow thousands of O
(3) The current standard is estimated to allow tens to thousands of O
(1) Based on a linear concentration-response function, the current standard is estimated to allow thousands of O
(2) Based on threshold models, HREA sensitivity analyses indicate that the number of respiratory deaths associated with long-term O
Compared to the weight given to HREA estimates of exposures of concern and lung function risks, and the weight given to the evidence, the PA places relatively less weight on epidemiologic-based risk estimates. In doing so, the PA notes that the overall conclusions from the HREA likewise reflect less confidence in estimates of epidemiologic-based risks than in estimates of exposures and lung function risks. The determination to attach less weight to the epidemiologic-based estimates reflects the uncertainties associated with mortality and morbidity risk estimates, including the heterogeneity in effect estimates between locations, the potential for exposure measurement errors, and uncertainty in the interpretation of the shape of concentration-response functions at lower O
Uncertainty in the shape of concentration-response functions at lower O
Section II.D.3 of the proposal summarizes the PA conclusions on the adequacy of the existing primary O
In particular, the PA concludes that strong support for this initial conclusion is provided by controlled human exposure studies of respiratory effects, and by quantitative estimates of exposures of concern and lung function decrements based on information in these studies. Analyses in the HREA estimate that the percentages of children (
The PA further concludes that support for this initial conclusion is also provided by estimates of O
After reaching the initial conclusion that meeting the current primary O
Section II.D.4 of the proposal summarizes CASAC advice regarding the adequacy of the existing primary O
In April 2008, the members of the CASAC Ozone Review Panel sent a letter to EPA stating “[I]n our most-recent letters to you on this subject—dated October 2006 and March 2007—the CASAC unanimously recommended selection of an 8-hour average Ozone NAAQS within the range of 0.060 to 0.070 parts per million [60 to 70 ppb] for the primary (human health-based) Ozone NAAQS” (Henderson, 2008). In 2010, in response to the EPA's solicitation of advice on the EPA's
CASAC fully supports EPA's proposed range of 0.060-0.070 parts per million (ppm) for the 8-hour primary ozone standard. CASAC considers this range to be justified by the scientific evidence as presented in the Air Quality Criteria for Ozone and Related Photochemical Oxidants (March 2006) and Review of the National Ambient Air Quality Standards for Ozone: Policy Assessment of Scientific and Technical Information, OAQPS Staff Paper (July 2007). As stated in our letters of October 24, 2006, March 26, 2007 and April 7, 2008 to former Administrator Stephen L. Johnson, CASAC unanimously recommended selection of an 8-hour average ozone NAAQS within the range proposed by EPA (0.060 to 0.070 ppm). In proposing this range, EPA has recognized the large body of data and risk analyses demonstrating that retention of the current standard would leave large numbers of individuals at risk for respiratory effects and/or other significant health impacts including asthma exacerbations, emergency room visits, hospital admissions and mortality.
In response to the EPA's request for additional advice on the reconsideration in 2011, CASAC reaffirmed their conclusion that “the evidence from controlled human and epidemiological studies strongly supports the selection of a new primary ozone standard within the 60-70 ppb range for an 8-hour averaging time” (Samet, 2011, p ii). As requested by the EPA, CASAC's advice and recommendations were based on the scientific and technical record from the 2008 rulemaking. In considering the record for the 2008 rulemaking, CASAC stated the following to summarize the basis for their conclusions (Samet, 2011, pp. ii to iii):
(1) The evidence available on dose-response for effects of O
(2) There is scientific certainty that 6.6-hour exposures with exercise of young, healthy, non-smoking adult volunteers to concentrations ≥80 ppb cause clinically relevant decrements of lung function.
(3) Some healthy individuals have been shown to have clinically relevant responses, even at 60 ppb.
(4) Since the majority of clinical studies involve young, healthy adult populations, less is known about health effects in such potentially ozone sensitive populations as the elderly, children and those with cardiopulmonary disease. For these susceptible groups, decrements in lung function may be greater than in healthy volunteers and are likely to have a greater clinical significance.
(5) Children and adults with asthma are at increased risk of acute exacerbations on or shortly after days when elevated O
(6) Large segments of the population fall into what the EPA terms a “sensitive population group,”
Following its review of the second draft PA in the current review, which considers an updated scientific and technical record since the 2008 rulemaking, CASAC concluded that “there is clear scientific support for the need to revise the standard” (Frey, 2014c, p. ii). In particular, CASAC noted the following (Frey, 2014c, p. 5):
[T]he scientific evidence provides strong support for the occurrence of a range of adverse respiratory effects and mortality under air quality conditions that would meet the current standard. Therefore, CASAC unanimously recommends that the Administrator revise the current primary ozone standard to protect public health.
In supporting these conclusions, CASAC judged that the strongest evidence comes from controlled human exposure studies of respiratory effects. The Committee specifically noted that “the combination of decrements in FEV
In their advice, CASAC also took note of estimates of O
The 80 ppb-8hr benchmark level represents an exposure level for which there is substantial clinical evidence demonstrating a range of ozone-related effects including lung inflammation and airway responsiveness in healthy individuals. The 70 ppb-8hr benchmark level reflects the fact that in healthy subjects, decreases in lung function and respiratory symptoms occur at concentrations as low as 72 ppb and that these effects almost certainly occur in some people, including asthmatics and others with low lung function who are less tolerant of such effects, at levels of 70 ppb and below. The 60 ppb-8hr benchmark level represents the lowest exposure level at which ozone-related effects have been observed in clinical studies of healthy individuals. Based on its scientific judgment, the CASAC finds that the 60 ppb-8hr exposure benchmark is relevant for consideration with respect to adverse effects on asthmatics.
With regard to lung function risk estimates, CASAC concluded that “estimation of FEV
Although CASAC judged that controlled human exposure studies of respiratory effects provide the strongest
Section II.D.5 in the proposal (79 FR 75287-75291) discusses the Administrator's proposed conclusions related to the adequacy of the public health protection provided by the current primary O
As an initial matter, the Administrator concluded that reducing precursor emissions to achieve O
After reaching the initial conclusion that meeting the current primary O
The Administrator further noted that evidence for adverse respiratory health effects attributable to long-term
In considering the O
In considering the evidence from controlled human exposure studies, the Administrator first noted that these studies have reported a variety of respiratory effects in healthy adults following exposures to O
(1) The combination of lung function decrements and respiratory symptoms reported to occur in healthy adults following exposures to 72 ppb O
(2) With regard to 60 ppb O
(3) The controlled human exposure studies reporting these respiratory effects were conducted in healthy adults, while at-risk groups (
(4) These respiratory effects are coherent with the serious health outcomes that have been reported in epidemiologic studies evaluating exposure to O
As noted above, the Administrator's proposed conclusions regarding the adequacy of the current primary O
While putting less weight on information from epidemiologic studies than on information from controlled human exposure studies, the Administrator also considered what the available epidemiologic evidence indicates with regard to the adequacy of the public health protection provided by the current primary O
In considering information from epidemiologic studies within the context of her conclusions on the adequacy of the current standard, the Administrator considered the extent to which available studies support the occurrence of O
Beyond her consideration of the scientific evidence, the Administrator also considered the results of the HREA exposure and risk analyses in reaching initial conclusions regarding the adequacy of the current primary O
With regard to estimates of exposures of concern, the Administrator considered the extent to which the current standard provides protection against exposures to O
She further noted that while single exposures of concern could be adverse for some people, particularly for the higher benchmark concentrations (70, 80 ppb) where there is stronger evidence for the occurrence of adverse effects, she became increasingly concerned about the potential for adverse responses as the number of occurrences increases (61 FR 75122).
As illustrated in Table 1 (above), the Administrator noted that if the 15 urban study areas evaluated in the HREA were to just meet the current O
Although, as discussed above and in section II.E.4.d of the proposal, the Administrator was less concerned about single occurrences of exposures of concern, she noted that even single occurrences can cause adverse effects in some people, particularly for the 70 and 80 ppb benchmarks. Therefore, she also considered estimates of one or more exposures of concern. As illustrated in Table 1 (above), if the 15 urban study areas evaluated in the HREA were to just meet the current O
In addition to estimated exposures of concern, the Administrator also considered HREA estimates of the occurrence of O
When averaged over the years evaluated in the HREA, the Administrator noted that the current standard is estimated to allow about 1 to 3% of children in the 15 urban study areas (corresponding to almost 400,000 children) to experience two or more O
In further considering the HREA results, the Administrator considered the epidemiology-based risk estimates. Compared to the weight given to HREA estimates of exposures of concern and lung function risks, she placed relatively less weight on epidemiology-based risk estimates. Consistent with the conclusions in the PA, her determination to attach less weight to the epidemiologic-based risk estimates reflected her consideration of key uncertainties, including the heterogeneity in effect estimates between locations, the potential for exposure measurement errors, and uncertainty in the interpretation of the shape of concentration-response functions for O
The Administrator focused on estimates of total mortality risk associated with short-term O
In addition to the evidence and exposure/risk information discussed above, the Administrator took note of the CASAC advice in the current review and in the 2010 proposed reconsideration of the 2008 decision establishing the current standard. As discussed in more detail above, the current CASAC “finds that the current NAAQS for ozone is not protective of human health” and “unanimously recommends that the Administrator revise the current primary ozone standard to protect public health” (Frey, 2014c, p. 5).
In consideration of all of the above, the Administrator proposed that the current primary O
The EPA received a large number of comments, more than 430,000 comments, on the proposed decision to revise the current primary O
Many commenters asserted that the current primary O
A second group of commenters, representing industry associations, businesses and some state agencies, opposed the proposed decision to revise the current primary O
The following sections discuss comments submitted by these and other groups, and the EPA's responses to those comments. Comments dealing with overarching issues that are fundamental to EPA's decision-making methodology are addressed in section II.B.2.a. Comments on the health effects evidence, including evidence from controlled human exposure and epidemiologic studies, are addressed in section II.B.2.b. Comments on human exposure and health risk assessments are addressed in section II.B.2.c. Comments on the appropriate indicator, averaging time, form, or level of a revised primary O
Some commenters maintained that the proposed rule (and by extension the final rule) is fundamentally flawed because it does not quantify, or otherwise define, what level of protection is “requisite” to protect the public health. These commenters asserted that “EPA has not explained how far above zero-risk it believes is appropriate or how close to background is acceptable. EPA has failed to explain how the current standard is inadequate on this specific basis” (
The EPA disagrees with these comments and notes that industry petitioners made virtually the same argument before the D.C. Circuit in
Thus, the Administrator is required to exercise her judgment in the face of scientific uncertainty to establish the NAAQS to provide appropriate protection against risks to public health, both known and unknown. As discussed below, in the current review, the Administrator judges that the existing primary O
The EPA further disagrees with the comment that a failure to quantify a requisite level of protection impaired or impeded public notice and comment opportunities. In fact, the EPA clearly gave adequate notice of the bases both for determining that the current standard does not afford requisite protection,
Various commenters maintained that it was inappropriate to revise the current NAAQS based on their view that natural background concentrations in several states are at or above O
The courts have clearly established that “[a]ttainability and technological feasibility are not relevant considerations in the promulgation of [NAAQS].”
The EPA's estimates of U.S. background ozone concentrations are based on frequently-utilized, state-of-the-science air quality models and are considered reasonable and reliable, not underestimates. In support of their view, the commenters state that monitored (not modelled) ozone concentrations in remote rural locations include instances of 8-hour average concentrations very occasionally higher than 70 ppb. Monitoring data from places like the Grand Canyon and Yellowstone National Parks, are examples cited in comments. It is inappropriate to assume that monitored O
To accurately estimate USB concentrations, it is necessary to use air quality models which can estimate how much of the O
Importantly, the modeling analyses also indicate that the highest O
As noted in the PA, and as highlighted by the commenters based on existing modeling, there can be infrequent events where daily maximum 8-hour O
In sum, the EPA believes that the commenters have failed to establish the predicate for their argument. Uncontrollable background concentrations of O
As noted above, comments on the adequacy of the current standard fell into two broad categories reflecting very
The EPA generally agrees with these commenters regarding the need to revise the current primary O
In contrast, while commenters who opposed the proposed decision to revise the primary O
The EPA disagrees with comments questioning the ISA's approach to assessing the evidence, the causal framework established in the ISA, or the consistent application of that framework across health endpoints. While the EPA acknowledges the ISA's approach departs from assessment and causality frameworks that have been developed for other purposes, such departures reflect appropriate adaptations for the NAAQS. As with other ISAs, the O
Given these views on the assessment of the evidence in the ISA, it is relevant to note that many of the issues and concerns raised by commenters on the EPA's interpretation of the evidence, and on the EPA's conclusions regarding the extent to which uncertainties have been reduced since the 2008 review, are essentially restatements of issues raised during the development of the ISA, HREA, and/or PA. The CASAC O
The remainder of this section discusses public comments and the EPA's responses, on controlled human exposure studies (II.B.2.b.i); epidemiologic studies (II.B.2.b.ii); and at-risk populations (II.B.2.b.iii).
This section discusses major comments on the evidence from controlled human exposure studies and provides the Agency's responses to those comments. To support their views on the adequacy of the current standard, commenters often highlighted specific aspects of the scientific evidence from controlled human exposure studies. Key themes discussed by these commenters included the following: (1) The adversity of effects demonstrated in controlled human exposure studies, especially studies conducted at exposure concentrations below 80 ppb; (2) representativeness of different aspects of the controlled human exposure studies for making inferences to the general population and at-risk populations; (3) results of additional analyses of the data from controlled human exposure studies; (4) evaluation of a threshold for effects; and (5) importance of demonstration of inflammation at 60 ppb. This section discusses these key comment themes, and provides the EPA's responses. More detailed discussion of individual comments, and the EPA's responses, is provided in the Response to Comments document.
Some commenters who disagreed with the EPA's proposed decision to revise the current primary O
Other commenters disagreed with the EPA's judgments regarding adversity and expressed the view that the effects observed in controlled human exposure studies following 6.6-hour exposures to O
While the EPA agrees that not all effects reported in controlled human exposure studies following exposures below 75 ppb can reasonably be considered to be adverse, the Agency strongly disagrees with comments asserting that none of these effects can be adverse. As an initial matter, the Administrator notes that, when considering the extent to which the current or a revised standard could allow adverse respiratory effects, based on information from controlled human exposure studies, she considers not only the effects themselves, but also quantitative estimates of the extent to which the current or a revised standard could allow such effects. Quantitative exposure and risk estimates provide perspective on the extent to which various standards could allow populations, including at-risk populations such as children and children with asthma, to experience the types of O
In further considering commenters' views on the potential adversity of the respiratory effects themselves (
In particular, the Administrator focuses on the ATS recommendation that “reversible loss of lung function in combination with the presence of symptoms should be considered adverse” (ATS, 2000a). The study by Schelegle et al. (2009) reported a statistically significant decrease in group mean FEV
As mentioned above, some commenters nonetheless maintained that the effects observed in Schelegle et al. (2009) following exposure to 72 ppb O
However, the ATS recommendation that the combination of lung function decrements and symptomatic responses be considered adverse is not restricted to effects of a particular magnitude nor a requirement that individual responses be correlated. Similarly, CASAC made no such qualifications in its advice on the combination of respiratory symptoms and lung function decrements (See
In particular, the Administrator notes that lung function provides an objective measure of the respiratory response to O
In further considering this comment, the EPA recognizes that, consistent with commenter's analysis, some individuals may experience large decrements in lung function with minimal to no respiratory symptoms (McDonnell et al., 1999), and vice versa. As indicated above and discussed in the proposal (79 FR 75289), the Administrator acknowledges such interindividual variability in responsiveness in her interpretation of estimated exposures of concern. Specifically, she notes that not everyone who experiences an exposure of concern, including for the 70 ppb benchmark, is expected to experience an adverse response. However, she further judges that the likelihood of adverse effects increases as the number of occurrences of O
A number of commenters raised issues concerning the representativeness of controlled human exposure studies considered by the Administrator in this review, based on different aspects of these studies. These commenters asserted that since the controlled human exposure studies were not representative of real-world exposures, they should not be relied upon as a basis for finding that the current standard is not adequate to protect public health. Some issues highlighted by commenters include: Small size of the study populations; unrealistic activity levels used in the studies; unrealistic exposure scenarios (
Some commenters noted that the controlled human exposure studies were not designed to have individuals represent portions of any larger group and that the impacts on a small number of people do not implicate the health of an entire subpopulation, particularly when the FEV
Consistent with CASAC advice (Frey, 2014c, p. 5), the EPA concludes that the body of controlled human exposure studies are sufficiently representative to be relied upon as a basis for finding that the current standard is not adequate to protect public health. These studies generally recruit healthy young adult volunteers, and often expose them to O
Moreover, the EPA may legitimately view the individuals in these studies as representatives of the larger subpopulation of at-risk or sensitive groups. As stated in the Senate Report to the 1970 legislation establishing the NAAQS statutory provisions, “the Committee emphasizes that included among these persons whose health should be protected by the ambient standard are particularly sensitive citizens such as bronchial asthmatics and emphysematics who in the normal course of daily activity are exposed to the ambient environment. In establishing an ambient standard necessary to protect the health of these persons, reference should be made to a representative sample of persons comprising the sensitive group rather than to a single person in such a group. . . . For purposes of this description, a statistically related sample is the number of persons necessary to test in order to detect a deviation in the health of any person within such sensitive group which is attributable to the condition of the ambient air.” S. Rep. No. 11-1196, 91st
These results are consistent with estimates from the MSS model, which makes reliable quantitative predictions of the lung function response to O
Other commenters considered the ventilation rates used in controlled human exposure studies to be unreasonably high and at the extreme of prolonged daily activity. Some of these commenters noted that these scenarios are unrealistic for sensitive populations, such as asthmatics and people with COPD, whose conditions would likely prevent them from performing the intensity of exercise, and therefore experiencing the ventilation rates, required to produce decrements in lung function observed in experimental settings.
The EPA disagrees with these commenters. The activity levels used in controlled human exposure studies were summarized in Table 6-1 of the ISA (U.S. EPA, 2013). The exercise level in the 6.6-hour exposure studies by Adams (2006), Schelegle et al. (2009), and Kim et al. (2011) of young healthy adults was moderate and ventilation rates are typically targeted for 20 L/min-m
However, referring to Tables 6-9 and 6-10 of the HREA (U.S. EPA, 2014a), between 42% and 45% of FEV
Additionally, a number of commenters asserted that the exposure scenarios in Schelegle et al. (2009), which are based on a so-called triangular study protocol, where O
The EPA disagrees with the comment that these triangular exposure scenarios are not generalizable because of hour-to-hour fluctuations. Adams (2002, 2006) showed that FEV
Finally, some commenters also stated that the Kim et al. (2011) study is missing critical information and its study design makes comparison to the other studies difficult. That is, the commenter suggests that data at times other than pre- and post-exposure should have been provided.
The EPA disagrees with this comment. With regard to providing data at other time points besides pre- and post-exposure, there is no standard that suggests an appropriate frequency at which lung function should be measured in prolonged 6.6-hour exposure studies. The Adams (2006) study showed that lung function decrements during O
Several commenters analyzed the data from controlled human exposure studies, or they commented on the EPA's analysis of the data from some of these studies (Brown et al., 2008), to come to a different conclusion than the EPA's interpretation of these studies thereby questioning the proposed decision that the current standard is not adequate to protect public health. One commenter submitted an independent assessment of the scientific evidence and risk, and used this analysis to assert that there are multiple flaws in the underlying studies and their interpretation by the EPA. This commenter stated that the EPA's discussion of the spirometric responses of children and adolescents and older adults to O
The commenter also stated that the EPA's treatment of filtered air responses in the dose-response curve was incorrect. They claimed that when creating a dose-response curve, it is most appropriate to include a zero-dose point and not to subtract the filtered air response from responses to O
The commenter also asserted that the McDonnell et al. (2012) model and exposure-response (E-R) models incorrectly used only the most responsive people and that EPA's reliance on data from clinical trials that use only the most responsive people irrationally ignores large portions of relevant data. The EPA rejects this assertion that the McDonnell et al. (2012) model and the E-R analysis ignored large portions of relevant data. The McDonnell et al. (2012) model was fit to the FEV
Finally, the commenter referenced the exposure-response model on p. 6-18 of the HREA. However, they neglected to note that this was in a section describing the exposure-response function approach used in prior reviews (U.S. EPA, 2014a, starting on p. 6-17). Thus, the commenter confused the exposure-response model used in the last review with the updated approach used in this review.
The commenter also stated that EPA did not properly consider O
Several commenters criticized the EPA analysis published by Brown et al. (2008). One commenter suggested that the EPA needed to state why the Brown et al. (2008) analysis was relied on rather than Nicolich (2007) or Lefohn et
The EPA disagrees with these commenters.
EPA disagrees with the comment stating that it was not appropriate for Brown et al. (2008) to only examine a portion of the Adams (2006) data. In fact, there is no established single manner or protocol decreeing that data throughout the protocol must be analyzed and included. Furthermore, Brown et al. (2008) was a peer-reviewed journal publication. CASAC also expressed favorable comments in their March 30, 2011, letter to Administrator Jackson. With reference to a memorandum (Brown, 2007) that preceded the Brown et al. (2008) publication, on p. 6 of the CASAC Consensus Responses to Charge Questions CASAC stated, “The results of the Adams et al. study also have been carefully reanalyzed by EPA investigators (Brown et. al., [2008]), and this reanalysis showed a statistically significant group effect on FEV
Several commenters used the new McDonnell et al. (2012) and Schelegle et al. (2012) models to support their views about the O
As described above in section II.A.1.b, the McDonnell et al. (2012) and Schelegle et al. (2012) models represent a significant technological advance in the exposure-response modeling approach since the last review, and these models indicate that a dose-threshold model fits the data better than a non-threshold model. However, the EPA disagrees that using the predicted group mean response from the McDonnell model provides support for retaining the current standard. As discussed above, the group mean responses do not convey information about interindividual variability, or the proportion of the population estimated to experience the larger lung function decrements (
Some commenters asserted that the pulmonary inflammation observed following exposure to 60 ppb in the controlled human exposure study by Kim et al. (2011) was small and unlikely to result in airway damage. It was also suggested that this inflammation is a normal physiological response in all living organisms to stimuli to which people are normally exposed.
The EPA recognized in the proposal (79 FR 75252) and the ISA (U.S. EPA, 2013, p. 6-76) that inflammation induced by a single exposure (or several exposures over the course of a summer) can resolve entirely. Thus, the inflammatory response observed following the single exposure to 60 ppb in the study by Kim et al. (2011) is not necessarily a concern. However, the EPA notes that it is also important to consider the potential for continued acute inflammatory responses to evolve into a chronic inflammatory state and to affect the structure and function of the lung.
This section discusses key comments on the EPA's assessment of the epidemiologic evidence and provides the Agency's responses to those comments. The focus in this section is on overarching comments related to the EPA's approach to assessing and interpreting the epidemiologic evidence as a whole. Detailed comments on specific studies, or specific methodological or technical issues, are addressed in the Response to Comments document. As discussed above, many of the issues and concerns raised by commenters on the interpretation of the epidemiologic evidence are essentially restatements of issues raised during the development of the ISA, HREA, and/or PA, and in many instances were considered by CASAC in the development of its advice on the current standard. The EPA's responses to these comments rely heavily on the process established in the ISA for assessing the evidence, and on CASAC advice received as part of this review of the O
As with evidence from controlled human exposure studies, commenters expressed sharply divergent views on the evidence from epidemiologic studies, and on the EPA's interpretation of that evidence. One group of commenters, representing medical, public health and environmental organizations, and some states, generally supported the EPA's interpretation of the epidemiologic evidence with regard to the consistency of associations, the coherence with other lines of evidence, and the support provided by epidemiologic studies for the causality determinations in the ISA. These commenters asserted that the epidemiologic studies evaluated in the ISA provide valuable information supporting the need to revise the level of the current primary O
The EPA agrees with certain aspects of each of these views. Specifically, while the EPA agrees that epidemiologic studies are an important part of the broader body of evidence that supports the ISA's causality determinations, and that these studies provide support for the decision to revise the current primary O
Uncertainties in the evidence were considered by the Administrator in the proposal, and contributed to her decision to place less weight on information from epidemiologic studies than on information from controlled human exposure studies when considering the adequacy of the current primary O
Based on analyses of study area air quality in the PA, the EPA notes that most of the U.S. and Canadian epidemiologic studies evaluated were conducted in locations likely to have violated the current standard over at least part of the study period. Although these studies support the ISA's causality determinations, they provide limited insight into the adequacy of the public health protection provided by the current primary O
As part of a larger set of comments criticizing the EPA's interpretation of the evidence from time series epidemiologic studies, some commenters objected to the EPA's reliance on the studies by Strickland et al. (2010), Silverman and Ito (2010), and Mar and Koenig (2009). These commenters highlighted what they considered to be key uncertainties in interpreting these studies, including uncertainties due to the potential for confounding by co-pollutants, aeroallergens, or the presence of upper respiratory infections; and uncertainties in the interpretation of zero-day lag models (
While the EPA agrees that there are uncertainties associated with interpreting the O
More specifically, with regard to confounding by co-pollutants, we note the ISA conclusion that, in studies of O
Other potential uncertainties highlighted by commenters have been evaluated less frequently (
With respect to the comment about epidemiologic studies not controlling for respiratory infections in the model, the EPA disagrees with the commenter's assertion. We recognize that asthma is a multi-etiologic disease and that air pollutants, including O
In addition, with regard to the criticism of the results reported by Mar and Koenig, the EPA disagrees with commenters who questioned the appropriateness of a zero-day lag. These commenters specifically noted uncertainty in the relative timing of the O
Given all of the above, we do not agree with commenters who asserted that uncertainties in the epidemiologic evidence in general, or in specific key studies, should preclude the
Some commenters also objected to the characterization in the ISA and the proposal that the results of epidemiologic studies are consistent. These commenters contended that the purported consistency of results across epidemiologic studies is the result of inappropriate selectivity on the part of the EPA in focusing on specific studies and specific results within those studies. In particular, commenters contend that EPA favors studies that show positive associations and selectively ignores certain studies that report null results. They also cite a study published after the completion of the ISA (Goodman et al., 2013) suggesting that, in papers where the results of more than one statistical model are reported, the EPA tends to report the results with the strongest associations.
The EPA disagrees that it has inappropriately focused on specific positive studies or specific positive results within individual studies. The ISA appropriately builds upon the assessment of the scientific evidence presented in previous AQCDs and ISAs.
A number of groups submitted comments on the EPA's identification of at-risk populations and lifestages. Some industry commenters who opposed revising the current standard disagreed with the EPA's identification of people with asthma or other respiratory diseases as an at-risk population for O
With regard to the former group of comments stating that the evidence does not support the identification of asthmatics as an at-risk population, we disagree. As summarized in the proposal, the EPA's identification of populations at risk of O
For example, with regard to people with asthma, the ISA notes a number of epidemiologic and controlled human exposure studies reporting larger and/or more serious effects in people with asthma than in people without asthma or other respiratory diseases. These include epidemiologic studies of lung function, respiratory symptoms, and medication use, as well as controlled human exposure studies showing larger inflammatory responses and markers indicating altered immune functioning in people with asthma, and also includes evidence from animal models of asthma that informs the EPA's interpretation of the other studies. We disagree with the industry commenters' focus solely on the results of certain studies without an integrated consideration of the broader body of evidence, and wider range of respiratory endpoints. It is such an integrated approach that supports EPA's conclusion that “there is adequate evidence for asthmatics to be an at-risk population” (U.S. EPA, 2013, section 8.2.2).
We also disagree with commenters' misleading reference to various studies cited to support the claim that asthmatics are not at increased risk of O
We also do not agree with the latter group of commenters that there is sufficient evidence to support the identification of additional populations as at risk of O
This section discusses major comments on the EPA's quantitative assessments of O
The EPA received a number of comments expressing divergent views on the estimation of, and interpretation of, O
In considering these comments, the EPA first notes that as discussed in the HREA, PA, and the proposal, there are aspects of the exposure assessment that, considered by themselves, can result in either overestimates or underestimates of the occurrence of O
Consistent with the characterization of uncertainties in the HREA, PA, and the proposal, the EPA agrees with some, though not all, aspects of these commenters' views. For example, the EPA agrees with the comment by groups opposed to revision that the equivalent ventilation rate (EVR) used to characterize individuals as at moderate or greater exertion in the HREA likely leads to overestimates of the number of individuals experiencing exposures of concern (U.S. EPA, 2014a, Table 5-10, p. 5-79). In addition, we note that other physiological processes that are incorporated into exposure estimates are also identified in the HREA as likely leading to overestimates of O
However, the EPA notes that there are also aspects of the HREA exposure assessment that, taken by themselves, could lead to the conclusion that the HREA understates the occurrence of O
In addition, medical, public health, and environmental groups also pointed out that the controlled human exposures studies that provided the basis for health effect benchmarks were conducted in healthy adults, rather than at-risk populations, and these studies evaluated 6.6 hour exposures, rather than the 8-hour exposures evaluated in the HREA exposure analyses. They concluded that adverse effects would occur at lower exposure concentrations in at-risk populations, such as people with asthma, and if people were exposed for 8 hours, rather than 6.6 hours. In its review of the PA, CASAC clearly recognized these uncertainties, which provided part of the basis for CASAC's advice to consider exposures of concern for the 60 ppb benchmark. For example, when considering the results of the study by Schelegle et al. (2009) for 6.6-hour exposures to an average O
Thus, rather than viewing the potential implications of various aspects of the HREA exposure assessment in isolation, as was done by many commenters, the EPA considers them together, along with other issues and uncertainties related to the interpretation of exposure estimates. As discussed above, CASAC recognized the key uncertainties in exposure estimates, as well as in the interpretation of those estimates in the HREA and PA (Frey, 2014a, c). In its review of the 2nd draft REA, CASAC concluded that “[t]he discussion of uncertainty and variability is comprehensive, appropriately listing the major sources of uncertainty and their potential impacts on the APEX exposure estimates” (Frey, 2014a, p. 6). Even considering these and other uncertainties, CASAC emphasized estimates of O
The EPA disagrees with other aspects of commenters' views on HREA estimates of exposures of concern. For example, commenters on both sides of the issue objected to the EPA's handling of averting behavior in exposure estimates. Some commenters who supported retaining the current standard claimed that the HREA overstates exposures of concern because available time-location-activity data do not account for averting behavior. These commenters noted sensitivity analyses in the HREA that estimated fewer exposures of concern when averting behavior was considered. In contrast, commenters supporting revision of the standard criticized the EPA's estimates of exposures of concern, claiming that the EPA “emphasizes the role of averting behavior, noting that it may result in an overestimation of exposures of concern, and cites this behavior (essentially staying indoors or not exercising) in order to reach what it deems an acceptable level of risk” (
The EPA disagrees with both of these comments. In brief, the NAAQS must “be established at a level necessary to protect the health of persons,” not the health of persons refraining from normal activity or resorting to medical interventions to ward off adverse effects of poor air quality (S. Rep. No. 11-1196, 91st Cong. 2d Sess. at 10). On the other hand, ignoring normal activity patterns for a pollutant like O
These commenters also misconstrue the EPA's limited sensitivity analyses on impacts of averting behavior in the HREA. The purpose of the HREA sensitivity analyses was to provide perspective on the potential role of averting behavior in modifying O
Some industry groups also claimed that the time-location-activity diaries used by APEX to estimate exposures are out-of-date, and do not represent activity patterns in the current population. These commenters asserted that the use of out-of-date diary information leads to overestimates in exposures of concern. This issue was explicitly addressed in the HREA and the EPA disagrees with commenters' conclusions. In particular, diary data was updated in this review to include data from studies published as late as 2010, directly in response to CASAC concerns. In their review of this data, CASAC stated that “[t]he addition of more recent time activity pattern data addresses a concern raised previously by the CASAC concerning how activity pattern information should be brought up to date” (Frey, 2014a, p. 8). As indicated in the HREA (U.S. EPA, 2014a, Appendix 5G, Figures 5G-7 and Figure 5G-8), the majority of diary days used in exposure simulations of children originate from the most recently conducted activity pattern studies (U.S. EPA, 2014a, Table 5-3). In addition, evaluations included in the HREA indicated that there were not major systematic differences in time-location-activity patterns based on information from older diaries versus those collected more recently (U.S. EPA,
The EPA also received a large number of comments on the FEV
The EPA agrees that an important source of uncertainty is the approach to estimating the risk of FEV
As discussed in the proposal (II.C.3.a.ii in the proposal), in the near absence of controlled human exposure data for children, risk estimates are based on the assumption that children exhibit the same lung function response following O
Some commenters additionally asserted that the HREA does not appropriately characterize the uncertainty in risk estimates for O
The Agency recognizes that there are important sources of uncertainty in the FEV
In the proposal, the Administrator placed the greatest emphasis on the results of controlled human exposure studies and on quantitative analyses based on information from these studies, and less weight on mortality and morbidity risk assessments based on information from epidemiology studies. The EPA received a number of comments on its consideration of epidemiology-based risks, with some commenters expressing support for the Agency's approach and others expressing opposition.
In general, commenters representing industry organizations or states opposed to revising the current primary O
As in the proposal, the EPA continues to place the greatest weight on the results of controlled human exposure studies and on quantitative analyses based on information from these studies (particularly exposures of concern, as discussed below in II.B.3 and II.C.4), and less weight on risk analyses based on information from epidemiologic studies. In doing so, the Agency continues to note that controlled human exposure studies provide the most certain evidence indicating the occurrence of health effects in humans following specific O
However, while the EPA agrees that there are important uncertainties in the O
Some commenters opposed to revising the current O
For communities across the U.S. (including in the Houston and Los Angeles areas), exposure and risk analyses indicate that reducing emissions of O
Specifically, for area-wide O
In addition, even considering risk estimates based on the full distribution of ambient O
For example, the HREA's national air quality modeling analyses indicate that the HREA urban study areas tend to underrepresent the populations living in areas where reducing NO
In addition, in recognizing that the reductions in modeled NO
Thus, the patterns of estimated mortality and morbidity risks across various air quality scenarios and locations have been evaluated and considered extensively in the HREA and the PA, as well as in the proposal. Epidemiology-based risk estimates have also been considered by CASAC, and those considerations are reflected in CASAC's advice. Specifically, in considering epidemiology-based risk estimates in its review of the REA, CASAC stated that “[a]lthough these estimates for short-term exposure impacts are subject to uncertainty, the CASAC is confident that that the evidence of health effects of O
For risk estimates of respiratory mortality associated with long-term O
This section discusses the Administrator's conclusions related to the adequacy of the public health protection provided by the current primary O
As an initial matter, the Administrator concludes that reducing precursor emissions to achieve O
After reaching the conclusion that meeting the current primary O
Together, experimental and epidemiologic studies support conclusions regarding a continuum of O
In addition, based on the consistency of findings across studies and the coherence of results from different scientific disciplines, the available evidence indicates that certain populations are at increased risk of experiencing O
In considering the O
In considering the evidence from controlled human exposure studies, the Administrator first notes that these studies have reported a variety of respiratory effects in healthy adults following exposures to O
As discussed in her response to public comments above (II.B.2.b.i), and in detail below (II.C.4.b, II.C.4.c), the Administrator concludes that these controlled human exposure studies indicate that adverse effects are likely to occur following exposures to O
In reaching these conclusions, she particularly notes that the combination of lung function decrements and respiratory symptoms reported to occur in healthy adults following exposures to 72 ppb O
While the Administrator is less certain regarding the adversity of the lung function decrements and airway inflammation that have been observed following exposures as low as 60 ppb, as discussed in more detail elsewhere in this preamble (II.B.2.b.i, II.C.4.b, II.C.4.c), she judges that these effects also have the potential to be adverse, and to be of public health importance, particularly if they are experienced repeatedly. With regard to this judgment, she specifically notes the ISA conclusion that, while the airway inflammation induced by a single exposure (or several exposures over the course of a summer) can resolve entirely, continued inflammation could potentially result in adverse effects, including the induction of a chronic inflammatory state; altered pulmonary structure and function, leading to diseases such as asthma; altered lung host defense response to inhaled microorganisms; and altered lung response to other agents such as allergens or toxins (U.S. EPA, 2013, section 6.2.3). Thus, the Administrator becomes increasingly concerned about the potential for adverse effects at 60 ppb O
In addition to controlled human exposure studies, the Administrator also considers what the available epidemiologic evidence indicates with regard to the adequacy of the public health protection provided by the current primary O
In considering information from epidemiologic studies within the context of her conclusions on the adequacy of the current standard, the Administrator specifically considers analyses in the PA that evaluate the extent to which O
In addition, even in some single-city study locations where the current standard was violated (
Compared to the single-city epidemiologic studies discussed above, the Administrator notes additional uncertainty in interpreting the relationships between short-term O
Looking across the body of epidemiologic evidence, the Administrator thus reaches the conclusion that analyses of air quality in study locations support the occurrence of adverse O
Taken together, the Administrator concludes that the scientific evidence from controlled human exposure and epidemiologic studies calls into question the adequacy of the public health protection provided by the current standard. In reaching this conclusion, she particularly notes that the current standard level is higher than the lowest O
Beyond her consideration of the scientific evidence, the Administrator also considers the results of the HREA exposure and risk analyses in reaching final conclusions regarding the adequacy of the current primary O
In first considering estimates of exposures of concern, the Administrator considers the extent to which estimates indicate that the current standard limits population exposures to the broader range of O
In considering estimates of O
In considering estimates of exposures of concern, the Administrator first notes that if the 15 urban study areas evaluated in the HREA were to just meet the current O
While the Administrator has less confidence in the adversity of the effects observed following exposures to 60 ppb O
Based on her consideration of these estimates within the context of her judgments on adversity, as discussed in her responses to public comments (II.B.2.b.i, II.C.4.b), the Administrator concludes that the exposures projected to remain upon meeting the current standard can reasonably be judged to be important from a public health perspective. In particular, given that the average percent of children estimated to experience two or more exposures of concern for the 60 ppb benchmark approaches 10% in some areas, even based on estimates averaged over the
In addition to estimated exposures of concern, the Administrator also considers HREA estimates of the risk of O
In further considering the HREA results, the Administrator considers the epidemiology-based risk estimates. As discussed in the proposal, compared to the weight given to HREA estimates of exposures of concern and lung function risks, she places relatively less weight on epidemiology-based risk estimates. In giving some consideration to these risk estimates, as discussed in the proposal and above in the EPA's responses to public comments (II.B.2.b.iii), the Administrator focuses on the risks associated with O
In addition to the evidence and exposure/risk information discussed above, the Administrator also takes note of the CASAC advice in the current review, in the 2008 review and decision establishing the current standard, and in the 2010 reconsideration of the 2008 decision. As discussed in more detail above, the current CASAC “finds that the current NAAQS for ozone is not protective of human health” and “unanimously recommends that the Administrator revise the current primary ozone standard to protect public health” (Frey, 2014c, p. 5). The prior CASAC O
In consideration of all of the above, the Administrator concludes that the current primary O
Based on the analyses in the HREA, the Administrator concludes that the exposures and risks projected to remain upon meeting the current standard can reasonably be judged to be important from a public health perspective. In particular, this conclusion is based on her judgment that it is appropriate to set a standard that would be expected to eliminate, or almost eliminate, exposures of concern at or above 70 and 80 ppb. In addition, given that the average percent of children estimated to experience two or more exposures of concern for the 60 ppb benchmark approaches 10% in some urban study areas, the Administrator concludes that the current standard does not incorporate an adequate margin of safety
In the next section, the Administrator considers what revisions are appropriate in order to set a standard that is requisite to protect public health with an adequate margin of safety.
Having reached the conclusion that the current O
In the 2008 review, the EPA focused on O
In addition, the PA notes that meeting an O
The EPA received very few comments on the indicator of the primary standard. Those who did comment supported the proposed decision to retain O
The EPA established the current 8-hour averaging time
In reaching a proposed conclusion on averaging time in the current review, the Administrator considered the extent to which the available evidence continues to support the appropriateness of a standard with an 8-hour averaging time (79 FR 75292). Specifically, the Administrator considered the extent to which the available information indicates that a standard with the current 8-hour averaging time provides appropriate protection against short- and long-term O
As an initial consideration with respect to the most appropriate averaging time for the O
In first considering the level of support available for specific short-term averaging times, the Administrator noted in the proposal the evidence available from controlled human exposure studies. As discussed in more detail in Chapter 3 of the PA, substantial health effects evidence from controlled human exposure studies demonstrates that a wide range of respiratory effects (
The Administrator also noted in the proposal the strength of evidence from epidemiologic studies that evaluated a wide variety of populations (
Considering the health information discussed above, in the proposal the Administrator concluded that an 8-hour averaging time remains appropriate for addressing health effects associated with short-term exposures to ambient O
The ISA concludes that the evidence for long-term O
In considering this issue in the 2008 review of the O
As an initial consideration, in the proposal the Administrator noted the risk results from the HREA for respiratory mortality associated with long-term O
In further considering the study by Jerrett et al. (2009), in the proposal the Administrator noted the PA comparison of long-term O
The Administrator also noted in the proposal that the HREA conducted analyses evaluating the impacts of reducing regional NO
In the proposal the Administrator noted that, when taken together, the analyses summarized above indicate that a standard with an 8-hour averaging time, coupled with the current fourth-high form and an appropriate level, would be expected to provide appropriate protection against the short- and long-term O
Most public commenters did not address the issue of whether the EPA should consider additional or alternative averaging times. Of those who did address this issue, some commenters representing state agencies or industry groups agreed with the proposed decision to retain the current 8-hour averaging time, generally noting the supportive evidence discussed in the preamble to the proposed rule. In contrast, several medical organizations and environmental groups questioned the degree of health protection provided by a standard based on an 8-hour averaging time. For example, one group asserted that “[a]veraging over any time period, such as 8 hours, is capable of hiding peaks that may be very substantial if they are brief enough.”
The EPA agrees with these commenters that an important issue in the current review is the appropriateness of using a standard with an 8-hour averaging time to protect against adverse health effects that are attributable to a wide range of O
The 8-hour O
In reaching her proposed decision to retain the 8-hour averaging time in the current review, the Administrator again considered the body of evidence for adverse effects attributable to a wide range of O
In addition, quantitative exposure and risk analyses in the HREA are based on an air quality adjustment approach that estimates hourly O
When taken together, the evidence and analyses indicate that a standard with an 8-hour averaging time, coupled with the current fourth-high form and an appropriate level, would be expected to provide appropriate protection against the short- and long-term O
The current 8-hour averaging time is justified by the combined evidence from epidemiologic and clinical studies referenced in Chapter 4. Results from clinical studies, for example, show a wide range of respiratory effects in healthy adults following 6.6 hours of exposure to ozone, including pulmonary function decrements, increases in respiratory symptoms, lung inflammation, lung permeability, decreased lung host defense, and airway hyperresponsiveness. These findings are supported by evidence from epidemiological studies that show causal associations between short-term exposures of 1, 8 and 24-hours and respiratory effects and “likely to be causal” associations for cardiovascular effects and premature mortality. The 8-hour averaging window also provides protection against the adverse impacts of long-term ozone exposures, which were found to be “likely causal” for respiratory effects and premature mortality.
In considering the evidence and information summarized in the proposal and discussed in detail in the ISA, HREA, and PA; CASAC's views; and public comments, the Administrator concludes that a standard with an 8-hour averaging time can effectively limit health effects attributable to both short- and long-term O
The “form” of a standard defines the air quality statistic that is to be compared to the level of the standard in determining whether an area attains that standard. The foremost consideration in selecting a form is the adequacy of the public health protection provided by the combination of the form and the other elements of the standard. In this review, the Administrator considers the extent to which the available evidence and/or information continue to support the appropriateness of a standard with the current form, defined by the 3-year average of annual fourth-highest 8-hour daily maximum O
The EPA established the current form of the primary O
During the 1997 review, the EPA considered a range of alternative “concentration-based” forms, including the second-, third-, fourth- and fifth-highest daily maximum 8-hour concentrations in an O
In the 2008 review, the EPA additionally considered the potential value of a percentile-based form. In doing so, the EPA recognized that such a statistic is useful for comparing datasets of varying length because it samples approximately the same place in the distribution of air quality values, whether the dataset is several months or several years long. However, the EPA concluded that a percentile-based statistic would not be effective in ensuring the same degree of public health protection across the country. Specifically, a percentile-based form would allow more days with higher air quality values in locations with longer O
Based on analyses of forms specified in terms of an nth-highest concentration (n ranged from 3 to 5), advice from CASAC, and public comment, the Administrator concluded that a fourth-highest daily maximum should be retained (73 FR 16465, March 27, 2008). In reaching this decision, the Administrator recognized that “there is not a clear health-based threshold for selecting a particular nth-highest daily maximum form of the standard” and that “the adequacy of the public health protection provided by the combination of the level and form is a foremost consideration” (73 FR 16475, March 27, 2008). Based on this, the Administrator judged that the existing form (fourth-highest daily maximum 8-hour average concentration) should be retained, recognizing the increase in public health protection provided by combining this form with a lower standard level (
The Administrator also recognized that it is important to have a form that provides stability with regard to implementation of the standard. In the case of O
In the proposal for the current review, the Administrator considered the extent to which newly available information provides support for the current form (79 FR 75293). In so doing, she took note of the conclusions of prior reviews summarized above. She recognized the value of an nth-high statistic over that of an expected exceedance or percentile-based form in the case of the O
In light of this, while giving foremost consideration to the adequacy of public health protection provided by the combination of all elements of the standard, including the form, the Administrator considered particularly the findings from prior reviews with regard to the use of the nth-high metric. As noted above, the EPA selected the fourth-highest daily maximum, recognizing the public health protection provided by this form, when coupled with an appropriate averaging time and level, and recognizing that such a form can provide stability for implementation programs. In the proposal the Administrator concluded that the currently available evidence and information do not call into question these conclusions from previous reviews. In reaching this initial conclusion, the Administrator noted that CASAC concurred that the O
Several commenters focused on the stability of the standard to support their positions regarding form. Some industry associations and state agencies support changing to a form that would allow a larger number of exceedances of the standard level than are allowed by the current fourth-high form. In some cases, these commenters argued that a standard allowing a greater number of exceedances would provide the same degree of public health protection as the current standard. Some commenters advocated a percentile-based form, such as the 98th percentile. These commenters cited a desire for consistency with short-term standards for other criteria pollutants (
Other commenters submitted analyses purporting to indicate that a fourth-high form provides only a small increase in stability, relative to forms that allow fewer exceedances of the standard level (
For the reasons discussed in the proposal, and summarized above, the EPA disagrees with commenters who supported a percentile-based form, such as the 98th percentile, for the O
In considering various nth-high values, as in past reviews (
In past reviews, EPA selected the fourth-highest daily maximum form in recognition of the public health protection provided by this form, when coupled with an appropriate averaging time and level, and recognizing that such a form can provide stability for ongoing implementation programs. As noted above, some commenters submitted analyses suggesting that a fourth-high form provides only a small increase in stability, relative to a first- or second-high form. The EPA has conducted analyses of ambient O
In reaching a final decision on the form of the primary O
This section summarizes the basis for the Administrator's proposed decision to revise the current standard level (II.C.4.a); discusses public comments, and the EPA's responses, on that proposed decision (II.C.4.b); and presents the Administrator's final decision regarding the level of the primary O
In conjunction with her proposed decisions to retain the current indicator, averaging time, and form (II.C.1 to II.C.3, above), the Administrator proposed to revise the level of the primary O
The Administrator's proposal to revise the standard level built upon her proposed conclusion that the overall body of scientific evidence and exposure/risk information calls into question the adequacy of public health protection afforded by the current primary O
As was the case for her consideration of the adequacy of the current primary O
In considering the evidence from controlled human exposure studies, the Administrator first noted that the largest respiratory effects, and the broadest range of effects, have been studied and reported following exposures to 80 ppb O
Based on this evidence, the Administrator reached the initial conclusion that the results of controlled human exposure studies strongly support setting the level of a revised O
In further considering the potential public health implications of a standard with a level of 70 ppb, the Administrator also considered quantitative estimates of the extent to which such a standard would be expected to limit population exposures to the broader range of O
The Administrator expressed less confidence that adverse effects will occur following exposures to O
However, she noted the possibility for adverse effects following such exposures given that: (1) CASAC judged the adverse combination of lung function decrements and respiratory symptoms “almost certainly occur in some people” following exposures to O
Due to interindividual variability in responsiveness, the Administrator further noted that not every occurrence of an exposure of concern will result in an adverse effect, and that repeated occurrences of some of the effects demonstrated following exposures of concern could increase the likelihood of adversity (U.S. EPA, 2013, section 6.2.3). Therefore, the Administrator was most concerned about protecting at-risk populations against repeated occurrences of exposures of concern. Based on the above considerations, the Administrator focused on the extent to which a revised standard with a level of 70 ppb would be expected to protect populations from experiencing two or more O
As illustrated in Table 1 in the proposal (and Table 1 above), the Administrator noted that, in urban study areas, a revised standard with a level of 70 ppb is estimated to eliminate the occurrence of two or more exposures of concern to O
In further evaluating the potential public health impacts of a standard with a level of 70 ppb, the Administrator also considered the HREA estimates of O
Although these FEV
The Administrator noted that a revised O
In next considering the additional protection that would be expected from standard levels below 70 ppb, the Administrator evaluated the extent to which a standard with a level of 65 ppb would be expected to further limit O
Taken together, the Administrator concluded that the evidence from controlled human exposure studies, and the information from quantitative analyses that draw upon these studies, provide strong support for standard levels from 65 to 70 ppb. In particular, she based this conclusion on the fact that such standard levels would be well below the O
In further considering the evidence and exposure/risk information, the Administrator considered the extent to which the epidemiologic evidence also provides support for standard levels from 65 to 70 ppb. In particular, the Administrator noted analyses in the PA (U.S. EPA, 2014c, section 4.4.1) indicating that a revised standard with a level of 65 or 70 ppb would be expected to maintain distributions of short-term ambient O
The Administrator noted additional uncertainty in interpreting air quality in locations of multicity epidemiologic studies of short-term O
In further evaluating information from epidemiologic studies, the Administrator considered the HREA's epidemiology-based risk estimates for O
In considering epidemiology-based risk estimates, the Administrator focused on risks associated with O
Given all of the above evidence, exposure/risk information, and advice from CASAC, the Administrator proposed to revise the level of the current primary O
In considering the appropriateness of standard levels below 65 ppb, the Administrator noted the conclusions of the PA and the advice of CASAC that it would be appropriate for her to consider standard levels as low as 60 ppb. In making the decision to not propose levels below 65 ppb, she focused on CASAC's rationale for a level of 60 ppb, which focused on the importance of limiting exposures to O
A number of groups representing medical, public health, or environmental organizations; some state agencies; and many individuals submitted comments on the appropriate level of a revised primary O
To support their views on the level of a revised standard, some commenters focused on overarching issues related to the statutory requirements for the NAAQS. For example, some commenters maintained that the primary NAAQS must be set at a level at which there is an absence of adverse effects in sensitive populations. While this argument has some support in the case law and in the legislative history to the 1970 CAA (see
Some have suggested that since the standards are to protect against all known or anticipated effects and since no safe threshold can be established, the ambient standards should be set at zero or background levels. Obviously, this no-risk philosophy ignores all economic and social consequences and is impractical. This is particularly true in light of the legal requirement for mandatory attainment of the national primary standards within 3 years.
Thus, post-1970 jurisprudence makes clear the impossibility, and lack of legal necessity, for NAAQS removing all health risk. See
In this review, EPA is setting a standard based on a careful weighing of available evidence, including a weighing of the strengths and limitations of the evidence and underlying scientific uncertainties therein. The Administrator's choice of standard level is rooted in her evaluation of the evidence, which reflects her legitimate uncertainty as to the O
In an additional overarching comment, some commenters also fundamentally objected to the EPA's consideration of exposure estimates in reaching conclusions on the primary O
The EPA disagrees with these commenters' conclusions regarding the appropriateness of considering exposure estimates, and notes that NAAQS must be “requisite” (
While setting the primary O
Further, the EPA sees nothing in the CAA that prohibits consideration of the O
In addition to these overarching comments, a number of commenters supported their views on standard level by highlighting specific aspects of the scientific evidence, exposure/risk information, and/or CASAC advice. Key themes expressed by these commenters included the following: (1) Controlled human exposure studies provide strong evidence of adverse lung function decrements and airway inflammation in healthy adults following exposures to O
Some commenters who advocated for a level of 60 ppb (or absent that, for 65 ppb) asserted that controlled human exposure studies have reported adverse respiratory effects in healthy adults following exposures to O
While the EPA agrees that information from controlled human exposure studies conducted at 60 ppb can help to inform the Administrator's decision on the standard level, the Agency does not agree that this information necessitates a level below 70 ppb. In fact, as discussed in the proposal, a revised O
Another important part of the Administrator's consideration of exposure estimates is the extent to which she judges that adverse effects could occur following specific O
As an initial matter, with regard to the effects shown in controlled human exposure studies following O
1. The largest respiratory effects, and the broadest range of effects, have been studied and reported following exposures to 80 ppb O
2. Exposures of healthy young adults for 6.6 hours to O
3. Exposures of healthy young adults for 6.6 hours to O
To inform her judgments on the potential adversity to public health of these effects reported in controlled human exposure studies, as in the proposal, the Administrator considers the ATS recommendation that “reversible loss of lung function in combination with the presence of symptoms should be considered adverse” (ATS, 2000a). She notes that this combination of effects has been shown to occur following 6.6-hour exposures to O
Regarding the potential for adverse effects following exposures to lower concentrations, the Administrator notes the CASAC judgment that the adverse combination of lung function decrements and respiratory symptoms “almost certainly occur in some people” following exposures to O
[I]f subjects had been exposed to ozone using the 8-hour averaging period used in the standard [rather than the 6.6-hour exposures evaluated in the study], adverse effects could have occurred at lower concentration. Further, in our judgment, the level at which adverse effects might be observed would likely be lower for more sensitive subgroups, such as those with asthma (Frey, 2014c, p. 5).
Though CASAC did not provide advice as to how far below 72 ppb adverse effects would likely occur, the Administrator agrees that such effects could occur following exposures at least somewhat below 72 ppb.
The Administrator notes that while adverse effects could occur following exposures at least somewhat below 72 ppb, the combination of statistically significant increases in respiratory symptoms and decrements in lung function has not been reported following 6.6-hour exposures to average O
With regard to ATS, she first notes the recommendations that “a small, transient loss of lung function, by itself, should not automatically be designated as adverse” and that “[f]ew . . . biomarkers have been validated sufficiently that their responses can be used with confidence to define the point at which a response should be equated to an adverse effect warranting preventive measures” (ATS, 2000a).
She further notes that some commenters who advocated for a level of 60 ppb also focused on ATS recommendations regarding population-level risks. These commenters specifically stated that lung function decrements “may be adverse in terms of `population risk,' where exposure to air pollution increases the risk to the population even though it might not harm lung function to a degree that is, on its own, `clinically important' to an individual” (
With regard to CASAC advice, the Administrator notes that, while CASAC clearly advised the EPA to consider the health effects shown to occur following exposures to 60 ppb O
Based on her consideration of all of the above recommendations and advice noted above, the Administrator judges that, compared to exposure concentrations at and above 72 ppb, there is greater uncertainty with regard to the adversity of effects shown to occur following O
In considering estimates of exposures of concern for the 60, 70, and 80 ppb benchmarks within the context of her judgments on adversity, the Administrator notes that, due to interindividual variability in responsiveness, not every occurrence of an exposure of concern will result in an adverse effect. As discussed above (II.B.2.b.i), this point was highlighted by some commenters who opposed revision of the current standard, based on their analysis of effects shown to occur following exposures to 72 ppb O
The Administrator's consideration of estimated exposures of concern is discussed in more detail below (II.C.4.b.iv, II.C.4.c). In summary, contrary to the conclusions of commenters who advocated for a level of 60 ppb, the Administrator judges that a revised standard with a level of 70 ppb will effectively limit the occurrence of the O
As noted above, commenters also pointed out that benchmark concentrations are based on studies conducted in healthy adults, whereas at-risk populations are likely to experience more serious effects and effects at lower O
Commenters representing environmental and public health organizations also highlighted epidemiologic studies that, in their view, provide strong evidence for associations with mortality and morbidity in locations with ambient O
The EPA agrees that epidemiologic studies can provide perspective on the degree to which O
While being aware of the uncertainties discussed above (II.B.2.b.ii), in considering what epidemiologic studies can tell us, the EPA notes analyses in the PA (U.S. EPA, 2014c, section 4.4.1) indicating that a revised standard with a level at or below 70 ppb would be expected to maintain distributions of short-term ambient O
As in the proposal, the EPA acknowledges additional uncertainty in interpreting air quality in locations of multicity epidemiologic studies of short-term O
In some cases, commenters highlighted studies that were assessed in the 2008 review of the O
As an initial matter with regard to these studies, the EPA notes that the focus of the ISA is on assessing the most policy-relevant scientific evidence. In the current review, the ISA considered over 1,000 new studies that have been published since the last review. Thus, it is not surprising that, as the body of evidence has been strengthened since the last review, some of the studies considered in the last review are no longer among the most policy relevant. However, based on the information included in the 2007 Staff Paper, the EPA does not agree that the studies highlighted by commenters provide compelling support for a level below 70 ppb. In fact, as discussed in the Staff Paper in the last review (U.S. EPA, 2007, p. 6-9; Appendix 3B), the O
Some commenters supporting levels below 70 ppb also asserted that quantitative analyses in the HREA are biased such that they understate O
As discussed in section II.B.2.b.i above, while the EPA agrees with certain aspects of these commenters' assertions, we do not agree with their overall conclusions. In particular, there are aspects of the HREA's quantitative analyses that, if viewed in isolation, would tend to either overstate or understate O
For example, some commenters who advocated for a level below 70 ppb asserted that the exposure assessment could underestimate O
In its reviews of the HREA and PA, CASAC recognized many of the uncertainties and issues highlighted by commenters. Even considering these uncertainties, CASAC endorsed the approaches adopted by the EPA to assess O
Some commenters further contended that the level of the primary O
Many commenters, including those representing major medical, public health, or environmental groups; some state agencies; and a large number of individual commenters, focused on CASAC advice in their rationale supporting levels below 70 ppb, and as low as 60 ppb. These commenters generally asserted that the EPA must
The EPA agrees that CASAC advice is an important consideration in reaching a decision on the standard level (see
As in the proposal, in her final decision on level the Administrator notes CASAC's overall conclusion that “based on the scientific evidence from clinical studies, epidemiologic studies, animal toxicology studies, as summarized in the ISA, the findings from the exposure and risk assessments as summarized in the HREA, and the interpretation of the implications of all of these sources of information as given in the Second Draft PA . . . there is adequate scientific evidence to recommend a range of levels for a revised primary ozone standard from 70 ppb to 60 ppb” (Frey, 2014c, p. 8). Thus, CASAC used the health evidence and exposure/risk information to inform its range of recommended standard levels, a range that included an upper bound of 70 ppb based on the scientific evidence, and it did not use the evidence and information to recommend setting the primary O
In addition to its advice based on the scientific evidence, CASAC offered the “policy advice” to set the level below 70 ppb, stating that a standard level of 70 ppb “may not meet the statutory requirement to protect public health with an adequate margin of safety” (Frey, 2014c, p. ii). In supporting its policy advice to set the level below 70 ppb, CASAC noted the respiratory effects that have been shown to occur in controlled human exposure studies following exposures from 60 to 80 ppb O
The EPA agrees that an important consideration when reaching a decision on level is the extent to which a revised standard is estimated to allow the types of exposures shown in controlled human exposure studies to cause respiratory effects. In reaching her final decision that a level of 70 ppb is requisite to protect public health with an adequate margin of safety (II.C.4.c, below), the Administrator carefully considers the potential for such exposures and effects. In doing so, she emphasizes the importance of setting a standard that limits the occurrence of the exposures about which she is most concerned (
When considering the extent to which a revised standard could allow O
As discussed further below (II.C.4.c), the Administrator notes that a revised standard with a level of 70 ppb is estimated to eliminate the occurrence of two or more exposures of concern to O
Though the Administrator judges that there is greater uncertainty with regard to the occurrence of adverse effects following exposures as low as 60 ppb, she notes that a revised standard with a level of 70 ppb is estimated to protect the vast majority of children in urban study areas (
While being less concerned about single occurrences of exposures of concern, especially at lower exposure concentrations, the Administrator also notes that a standard with a level of 70 ppb is estimated to (1) virtually eliminate all occurrences of exposures of concern at or above 80 ppb; (2) protect ≥ about 99% of children in urban study areas from experiencing any exposures of concern at or above 70 ppb; and (3) to achieve substantial reductions (
Given the information and advice noted above (and in II.C.4.b.i, II.C.4.b.iii), the Administrator judges that a revised standard with a level of 70 ppb will effectively limit the occurrence of the O
Contrary to the conclusions of commenters who advocated for a level below 70 ppb, the Administrator notes that her final decision is consistent with CASAC's advice, based on the scientific evidence, and with CASAC's focus on setting a revised standard to further limit the occurrence of the respiratory effects observed in controlled human exposure studies, including effects observed following exposures to 60 ppb O
Having carefully considered the public comments on the appropriate level of the primary O
The Administrator's decision to revise the level of the primary O
Given her consideration of the evidence, exposure/risk information, advice from CASAC, and public comments, the Administrator judges that a standard with a level of 70 ppb is requisite to protect public health with an adequate margin of safety. She notes that the determination of what constitutes an adequate margin of safety is expressly left to the judgment of the EPA Administrator. See
In considering the need for an adequate margin of safety, the Administrator notes that a standard with a level of 70 ppb O
As an initial matter, consistent with her conclusions on the need for revision of the current standard (II.B.3), in reaching a decision on level the Administrator places the most weight on information from controlled human exposure studies. In doing so, she notes that controlled human exposure studies provide the most certain evidence indicating the occurrence of health
With regard to the effects shown in controlled human exposure studies following specific O
While such controlled human exposure studies provide a high degree of confidence regarding the occurrence of health effects following exposures to O
Taken together, the Administrator concludes that the evidence from controlled human exposure studies provides strong support for her conclusion that a revised standard with a level of 70 ppb is requisite to protect the public health with an adequate margin of safety. She bases this conclusion, in part, on the fact that such a standard level would be well below the O
As discussed above (II.C.4.b.i), the Administrator also notes that a revised O
Due to interindividual variability in responsiveness, the Administrator notes that not every occurrence of an exposure of concern will result in an adverse effect (II.C.4.b.i). Moreover, repeated occurrences of some of the effects demonstrated following exposures of concern could increase the likelihood of adversity (U.S. EPA, 2013, Section 6.2.3, p. 6-76). In particular, she notes that the types of respiratory effects that can occur following exposures of concern, particularly if experienced repeatedly, provide a plausible mode of action by which O
Based on her consideration of adversity discussed above, the Administrator places the most emphasis on setting a standard that appropriately limits repeated occurrences of exposures of concern at or above the 70 and 80 ppb benchmarks. She notes that a revised standard with a level of 70 ppb is estimated to eliminate the occurrence of two or more exposures of concern to O
While she is less confident that adverse effects will occur following exposures to O
Given the considerable protection provided against repeated exposures of concern for all of the benchmarks evaluated, including the 60 ppb benchmark, the Administrator judges that a standard with a level of 70 ppb will incorporate a margin of safety against the adverse O
While the Administrator is less concerned about single occurrences of O
The Administrator additionally judges that a standard with a level of 70 ppb would be expected to result in important reductions, compared to the current standard, in the population-level risk of O
The Administrator also considers the epidemiologic evidence and the quantitative risk estimates based on information from epidemiologic studies. As discussed in the proposal, and above in the EPA's responses to significant comments, although the Administrator acknowledges the important uncertainties in using the O
With regard to epidemiology-based risk estimates, the Administrator takes note of the CASAC conclusion that “[a]lthough the estimates for short-term exposure impacts are subject to uncertainty, the data supports a conclusion that there are meaningful reductions in mean premature mortality associated with ozone levels lower than the current standard” (Frey, 2014a, p. 10). While she concludes that epidemiology-based risk analyses provide only limited support for any specific standard level, consistent with CASAC advice the Administrator judges that, compared to the current standard, a revised standard with a level of 70 ppb will result in meaningful reductions in the mortality and respiratory morbidity risk that is associated with short-or long-term ambient O
Given all of the evidence and information discussed above, the Administrator judges that a standard with a level of 70 ppb is requisite to protect public health with an adequate margin of safety, and that a level below 70 ppb would be more than “requisite” to protect the public health. In reaching this conclusion, she notes that a decision to set a lower level would place a large amount of emphasis on the potential public health importance of (1) further reducing the occurrence of O
Thus, having carefully considered the evidence, information, CASAC advice, and public comments relevant to her decision on the level of the primary O
In making her decision to revise the level of the primary O
For all of the above reasons, the Administrator concludes that a primary O
For the reasons discussed above, and taking into account information and assessments presented in the ISA, HREA, and PA, the advice and recommendations of the CASAC Panel, and the public comments, the Administrator has decided to revise the existing 8-hour primary O
At this time, EPA is also promulgating revisions to the Air Quality Index (AQI) for O
Information on the public health implications of ambient concentrations of criteria pollutants is currently made available primarily through EPA's AQI program. The AQI has been in use since its inception in 1999 (64 FR 42530). It provides accurate, timely, and easily understandable information about daily levels of pollution. It is designed to tell individual members of the public how clean or unhealthy their air is, whether health effects might be a concern, and, if so, measures individuals can take to reduce their exposure to air pollution.
Recognizing the importance of revising the AQI in a timely manner to be consistent with any revisions to the NAAQS, EPA proposed conforming changes to the AQI, in connection with the Agency's proposed decision on revisions to the O
The EPA proposed to revise the AQI for O
EPA stated that the proposed breakpoints reflect an appropriate balance between reflecting the health evidence that is the basis for the proposed primary O
With respect to reporting requirements (40 CFR part 58, section 58.50), EPA proposed to revise 40 CFR part 58, section 58.50 (c) to determine the areas subject to AQI reporting requirements based on the latest available census figures, rather than the most recent decennial U.S. census.
EPA received many comments on the proposed changes to the AQI. Three issues came up in the comments, including: (1) Whether the AQI should be revised at all, even if the primary standard is revised; (2) whether an AQI value of 100 should be set equal to the level of the primary standard and the other breakpoints adjusted accordingly; and, (3) whether the AQI reporting requirements should be based on the latest available census figures rather than the most recent decennial census.
With respect to the first issue, some industry commenters stated that the AQI should not be revised at all, even if the level of the primary O
On the other hand, state and local agencies and their organizations, environmental and medical groups, and members of the public overwhelmingly supported revising the AQI when the level of the standard is revised. Even state agencies that did not support revising the standard, expressed support for revising the AQI at the same time as the standard, if the standard is revised.
Recognizing the importance of the AQI as a communication tool that allows members of the public to take exposure reduction measures when air quality poses health risks, the EPA agrees with these comments about revising the AQI at the same time as the primary standard. The EPA agrees with state and local agency commenters that its historical approach of setting an AQI value of 100 equal to the level of the revised 8-hour primary O
EPA disagrees with commenters who stated that the AQI should not be linked to the primary standards. As noted in the August 4, 1999, rulemaking (64 FR 149, 42531) that established the current AQI, the EPA established the nationally uniform air quality index, called the Pollutant Standards Index (PSI), in 1976 to meet the needs of state and local agencies with the following advantages: It sends a clear and consistent message to the public by providing nationally uniform information on air quality; it is keyed as appropriate to the NAAQS and the Significant Harm Level which have a scientific basis relating air quality and public health; it is simple and easily understood by the public; it provides a framework for reflecting changes to the NAAQS; and it can be forecasted to provide advance information on air quality. Both the PSI and AQI have historically been normalized across pollutants by defining an index value of 100 as the numerical level of the short-term (
In general, commenters who supported revising the AQI when the standard is revised, also supported setting an AQI value of 100 equal to the level of the 8-hour primary O
With respect to proposed changes to other AQI breakpoints, some state and local agency commenters expressed general support for all the changes in O
We received fewer comments on proposed changes to the AQI values of 150, 200 and 300. Again, some state and local agency commenters expressed general support for proposed changes to the AQI. Some states specifically supported these breakpoints. However, a commenter suggested setting an AQI value at the lower end of the unhealthy category, at a level much lower than 85 ppb, since they state that it is a key threshold that is often used in air quality action day programs as a trigger to encourage specific behavior modifications or reduce emissions of O
As noted earlier, the EPA proposed to revise 40 CFR part 58, section 58.50(c) to determine the areas subject to AQI reporting requirements based on the latest available census figures, rather than the most recent decennial U.S. census.
A total of five state air monitoring agencies provided comments on this proposed change. Four agencies supported the proposal. One state commenter did not support the proposal, noting that the change would unnecessarily complicate AQI reporting and possibly increase reporting burdens in an unpredictable manner.
The EPA notes that the majority of monitoring network minimum requirements listed in Appendix D to Part 58 include a reference to “latest available census figures.” Minimum network requirements for O
One state requested additional guidance on the frequency of updating the AQI reporting threshold, and recommended linking the AQI reporting requirement evaluation with the annual air monitoring network plan requirements, and recommended requiring AQI reporting to begin no later than January 1 of the following year. The EPA notes that the census bureau estimates appear to be released around July 1 of each year which would not provide sufficient time for monitoring agencies to incorporate AQI reporting in their annual plans for that year, which are also due by July 1 each year. EPA believes that it should be unnecessary for monitoring agencies to wait until the implementation of the following year's annual plan (
For the reasons discussed above, the EPA is revising the AQI for O
This section (IV) presents the rationale for the Administrator's decisions regarding the need to revise the current secondary standard for O
The Administrator has made this decision based on judgments regarding the currently available welfare effects evidence, the appropriate degree of public welfare protection for the revised standard, and currently available air quality information on seasonal cumulative exposures that may be allowed by such a standard. In so doing, she has focused on O
As discussed more fully below, this decision is based on a thorough review, in the ISA, of the latest scientific information on O
This decision draws on the ISA's integrative synthesis of the entire body of evidence, generally published through July 2011, on environmental effects associated with the presence of O
Information related to vegetation and ecosystem effects, biologically relevant exposure indices, and vegetation exposure and risk assessments were summarized in sections IV.A through IV.C of the proposal (79 FR at 75314-75329), respectively, and key observations from the proposal are briefly outlined in sections IV.A.1 to IV.A.3 below. Subsequent sections of this preamble provide a more complete discussion of the Administrator's rationale, in light of key issues raised in public comments, for concluding that the current standard is not requisite to protect public welfare from known or anticipated adverse effects (section IV.B), and that it is appropriate to revise the current secondary standard to provide additional public welfare protection by revising the level while retaining the current indicator, form and averaging time (section IV.C). A summary of the final decisions on revisions to the secondary standard is presented in section IV.D.
In the more than fifty years that have followed identification of O
The strongest evidence for effects from O
The welfare effects of O
Based on assessment of this extensive body of science, the EPA has determined that, with respect to vegetation and ecosystems, a causal relationship exists between exposure to O
Ozone in the troposphere is also a major greenhouse gas and radiative forcing agent,
Given the strong evidence base and the findings of causal or likely causal relationships with O
Visible foliar injury resulting from exposure to O
The significance of O
By far the most extensive field-based dataset of visible foliar injury incidence is that obtained by the U.S. Forest Service Forest Health Monitoring/Forest Inventory and Analysis (USFS FHM/FIA) biomonitoring network program (U.S. EPA, 2013, section 9.4.2.1; Smith, 2012; Coulston
Ozone has been shown to affect a number of important U.S. tree species with respect to growth, productivity, and carbon storage. Ambient O
The strong evidence of O
The magnitude of O
There is previously and newly available evidence of the potential for O
A number of studies were conducted at a planted forest at the Aspen free-air carbon-dioxide and ozone enrichment (FACE) experiment site in Wisconsin. These studies, which occurred in a field setting (more similar to natural forest stands than OTC studies), observed tree growth responses when grown in single or two species stands within 30-m diameter rings and exposed over a period of ten years to existing ambient conditions and elevated O
Robust and well-established E-R functions for RBL are available for 11 tree species: black cherry, Douglas fir, loblolly pine, ponderosa pine, quaking aspen, red alder, red maple, sugar maple, tulip poplar, Virginia pine, and white pine (U.S. EPA, 2013; U.S. EPA, 2014c). While these 11 species represent only a small fraction (0.8 percent) of the total number of native tree species in the contiguous U.S. (1,497), this small subset includes eastern and western species, deciduous and coniferous species, and species that grow in a variety of ecosystems and represent a range of tolerance to O
The “detrimental effect of O
The new evidence has strengthened support for previously established E-R functions for 10 crops (barley, field corn, cotton, kidney bean, lettuce, peanut, potato, grain sorghum, soybean and winter wheat), reducing two important areas of uncertainty, especially for soybean, as summarized in more detail in section IV.A of the proposal. The established E-R functions for relative yield loss (RYL)
In assessing biologically based indices of exposure pertinent to O
The main conclusions from the 1996 and 2006 O
The long-standing body of available evidence upon which these conclusions are based includes a wealth of information on aspects of O
Based on extensive review of the published literature on different types of exposure-response metrics, including comparisons between metrics, the EPA has focused on cumulative, concentration-weighted indices, recognizing them as the most appropriate biologically based metrics to consider in this context (U.S. EPA, 1996a; U.S. EPA, 1996b; U.S. EPA, 2006a; U.S. EPA, 2013). In the last two reviews of the O
Alternative methods for characterizing O
Therefore, consistent with the ISA conclusions regarding the appropriateness of considering cumulative exposure indices that preferentially weight higher concentrations over lower for predicting O
This metric, commonly called the W126 index, is a non-threshold approach described as the sigmoidally weighted sum of all hourly O
This section outlines the information presented in section IV.C of the proposal regarding the WREA conducted for this review, which built upon similar analyses performed in the last review. The WREA focuses primarily on analyses related to two types of effects on vegetation: Reduced growth (biomass loss) in both trees and agricultural crops, and foliar injury. The assessments of O
Growth-related effects were assessed for W126-based exposure estimates in five scenarios of national-scale
The first step in creating the grid cell estimates for each scenario was calculation of the average W126 index value (across the three years) at each monitor location. For the recent conditions scenario, this value was based on unadjusted O
After completing step one for all the scenarios, the second step involved creating the national-scale spatial surfaces (composed of 3-year W126 index values at grid cell centroids). These were created by applying the Voronoi Neighbor Averaging (VNA) spatial interpolation technique to the monitor-location, 3-year W126 index values (described in step 1).
All of the assessments based on growth impacts relied on the W126 index estimates from the national-scale spatial surfaces (created from the 3-year average monitor location values as described above). Among the analyses related to visible foliar injury, a small component of the screening-level
Because the W126 estimates generated for the different air quality scenarios assessed are inputs to the vegetation risk analyses for tree biomass and crop yield loss, and also used in some components of the visible foliar injury assessments, limitations and uncertainties in the air quality analyses, which are discussed in detail in the WREA and some of which are mentioned here, are propagated into those analyses (U.S. EPA, 2014b, chapters 4 and 8 and section 8.5, Table 4-5). An important uncertainty in the analyses is the application of regionally determined emissions reductions to meet the existing standard (U.S. EPA, 2014b, section 8.5.1). The model adjustments are based on emissions reductions in NOx and characterize only one potential distribution of air quality across a region when all monitor locations meet the standard, as well as for the W126 scenarios (U.S. EPA, 2014b, section 4.3.4.2).
An additional uncertainty related to the W126 index estimates in the national surfaces for each air quality scenario, and to the estimates for the single-year surfaces used in the visible foliar injury cumulative analysis, comes with the creation of the national-scale spatial surfaces of grid cells from the monitor-location O
The vegetation analyses performed in the WREA, along with key observations, insights, uncertainties and limitations were summarized in sections IV.C.2 through IV.C.3 of the proposal. Highlights for the three categories of biomass loss and foliar injury assessments are summarized here.
These assessments rely on the species-specific E-R functions described in section IV.A.1.b above. For the air quality scenarios described above, the WREA applied the species-specific E-R functions to develop estimates of O
Relative biomass loss nationally (across all of the air quality surface grid cells) was estimated for each of the 12 studied species from the composite E-R functions for each species described above and information on the distribution of those species across the U.S. (U.S. EPA, 2014b, section 6.2.1.3 and Appendix 6A). In consideration of CASAC advice (summarized in section IV.A.1.b above), the WREA derived RBL and weighted RBL (wRBL) estimates separately, both with and without the eastern cottonwood, and the PA and proposal gave primary focus to analyses that exclude cottonwood. These analyses provided estimates of per-species and cross-species RBL in the different air quality scenarios. Air quality scenario estimates were also developed in terms of proportion of basal area affected at different magnitudes of RBL. The wRBL analysis integrated the species-specific estimates, providing an indication of potential magnitude of ecological effect possible in some ecosystems. The county analyses also included analyses focused on the median species response. The WREA also used the E-R functions to estimate RBL across tree lifespans and the resulting changes in consumer and producer/farmer economic surplus in the forestry and agriculture sectors of the economy. Case studies in five urban areas provided comparisons across air quality scenarios of estimates for urban tree pollutant removal and carbon storage or sequestration.
The array of uncertainties associated with estimates from these tree RBL analyses are summarized in the proposal and described in detail in the WREA, including the potential for the air quality scenarios to underestimate the higher W126 index values and associated implications for the RBL-related estimates, as referenced above.
These assessments rely on the species-specific E-R functions described in section IV.A.1.b above. For the different air quality scenarios, the WREA applied the species-specific E-R functions to develop estimates of O
Overall effects on agricultural yields and producer and consumer surplus depend on the ability of producers/farmers to substitute other crops that are less O
The WREA presents a number of analyses of O
In each cumulative analysis, the biosite records were ordered by W126 index and then, moving from low to high W126 index, the records were cumulated into a progressively larger dataset. With the addition of each new data point (composed of biosite index score and W126 index value for a biosite and year combination) to the cumulative dataset, the percentage of sites with a nonzero biosite index score was derived and plotted versus the W126 index estimate for the just added data point. The cumulative analysis for all sites indicates that (1) as the cumulative set of sites grows with addition of sites with progressively higher W126 index values, the proportion of the dataset for which no foliar injury was recorded changes (increases) noticeably prior to about 10 ppm-hrs (10.46 ppm-hrs), and (2) as the cumulative dataset grows still larger with the addition of records for higher W126 index estimates, the proportion of the cumulative dataset with no foliar injury remains relatively constant (U.S. EPA, 2014b, Figure 7-10). The data for normal moisture years are very similar to the dataset as a whole, with an overall proportion of about 18 percent for presence of any foliar injury. The data for relatively wet years have a much higher proportion of biosites showing injury, approximately 25% when all data are included, and a proportion of approximately 20% when data for W126 index estimates up to about 5-8 ppm-hrs are included (U.S. EPA, 2014b, Figure 7-10).
Criteria derived from the cumulative analyses were then used in two additional analyses. The national-scale screening-level assessment compared W126 index values estimated within 214 national parks using the VNA technique described above for the individual years from 2006 to 2010 with benchmark criteria developed from the biosite data analysis (U.S. EPA, 2014b, Appendix 7A and section 7.3). Separate case study analyses described visits, as well as visitor uses and expenditures for three national parks, and the 3-year W126 index estimates in those parks for the four air quality scenarios (U.S. EPA, 2014b, section 7.4). Uncertainties associated with these analyses, included those associated with the W126 index estimates, are discussed in the WREA, sections 7.5 and 8.5.3, and in WREA Table 7-24, and also summarized in the PA (
As provided in the CAA, section 109(b)(2), the secondary standard is to “specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator . . . is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air.” Effects on welfare include, but are not limited to, “effects on soils, water, crops, vegetation, man-made materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being” (CAA section 302(h)). The secondary standard is not meant to protect against all known or anticipated O
As indicated by the Administrator in the 2008 decision, the degree to which O
The concept described in the 2008 notice regarding the degree to which effects on vegetation in specially protected areas, such as those identified above, may be judged adverse also applies beyond the species level to the ecosystem level, such that judgments can depend on the intended use
The spatial, temporal and social dimensions of public welfare impacts are also influenced by the type of service affected. For example, a national park can provide direct recreational services to the thousands of visitors that come each year, but also provide an indirect value to the millions who may not visit but receive satisfaction from knowing it exists and is preserved for the future (U.S. EPA, 2014b, chapter 5, section 5.5.1). Similarly, ecosystem services can be realized over a range of temporal scales. An evaluation of adversity to the public welfare might also consider the likelihood, type, and magnitude of the effect, as well as the potential for recovery and any uncertainties relating to these conditions, as stated in the preamble of the 2012 final notice of rulemaking on the secondary standards for oxides of nitrogen and sulfur (77 FR 20232, April 3, 2012).
The three main categories of effects on vegetation discussed in section IV.A.1.b above differ with regard to aspects important to judging their public welfare significance. Judgments regarding crop yield loss, for example, depend on considerations related to the heavy management of agriculture in the U.S., while judgments regarding the other categories of effects generally relate to considerations regarding forested areas. For example, while both tree growth-related effects and visible foliar injury have the potential to be significant to the public welfare through impacts in Class I and other protected areas, they differ in how they might be significant and with regard to the clarity of the data that describe the relationship between the effect and the services potentially affected.
With regard to effects on tree growth, reduced growth is associated with effects on an array of ecosystem services including reduced productivity, altered forest and forest community (plant, insect and microbe) composition, reduced carbon storage and altered water cycling (U.S. EPA, 2013, Figure 9-1, sections 9.4.1.1 and 9.4.1.2; U.S. EPA, 2014b, section 6.1). For example, forest or forest community composition can be affected through O
Consideration of the magnitude of tree growth effects that might cause or contribute to adverse effects for trees, forests, forested ecosystems or the public welfare is complicated by aspects
During the 1997 review of the secondary standard, views related to this issue were provided by a 1996 workshop of 16 leading scientists in the context of discussing their views for a secondary O
While, as noted above, public welfare benefits of forested lands can be particular to the type of area in which the forest occurs, some of the potential public welfare benefits associated with forest ecosystems are not location dependent. A potentially extremely valuable ecosystem service provided by forested lands is carbon storage, a regulating service that is “of paramount importance for human society” (U.S. EPA, 2013, section 2.6.2.1 and p. 9-37). As noted above, the EPA has concluded that this ecosystem service has a likely causal relationship with O
As noted above, in addition to tree growth-related effects, O
The ecosystem services most likely to be affected by O
With regard to agriculture-related effects, the EPA has recognized other complexities, stating that the degree to which O
In summary, several considerations are recognized as important to judgments on the public welfare significance of the array of effects of different O
The initial issue to be addressed in this review of the secondary standard for O
In evaluating whether it is appropriate to revise the current standard, the Administrator's considerations build on the general approach used in the last review, as summarized in section IV.A of the proposal, and reflect the body of evidence and information available during this review. The approach used is based on an integration of the information on vegetation effects associated with exposure to O
Section IV.B.1 below summarizes the basis for the proposed decision by the Administrator that the current secondary standard should be revised. Significant comments received from the public on the proposal are discussed in section IV.B.2 and the Administrator's final decision is described in section IV.B.3.
In evaluating whether it was appropriate to propose to retain or revise the current standard, as discussed in section IV.D of the proposal, the Administrator carefully considered the assessment of the current evidence in the ISA, findings of the WREA, including associated limitations and uncertainties, considerations and staff conclusions and associated rationales presented in the PA, views expressed by CASAC, and public comments that had been offered up to that point. In the paragraphs below, we summarize the proposal presentation of the PA considerations with regard to adequacy of the current secondary standard, advice from the CASAC, and the Administrator's proposed conclusions, drawing from section IV.D of the proposal, where a fuller discussion is presented.
The PA evaluation is based on the longstanding evidence for O
In considering the extent to which such growth-related effects might be expected to occur under conditions that meet the current secondary standard, the PA focused particularly on tree seedling RBL estimates for the 11 species for which robust E-R functions have been developed, noting the CASAC concurrence with use of O
In considering the RBL estimates for different O
In recognition of the potential significance to public welfare of vegetation effects in Class I areas, the proposal described in detail findings of the PA analysis of the occurrence of O
The proposal also noted that the PA additionally considered findings of the WREA analyses of O
As described in the proposal, the PA also considered O
With regard to visible foliar injury, as summarized in the proposal, the PA recognizes the long-standing evidence that has established that O
As summarized in the proposal, the PA additionally takes note of the evidence described in the ISA regarding the role of soil moisture conditions that can decrease the incidence and severity of visible foliar injury under dry conditions (U.S. EPA, 2014c, sections 5.4 and 5.7). As recognized in the PA, this area of uncertainty complicates characterization of the potential for visible foliar injury and its severity or extent of occurrence for given air quality conditions and thus complicates identification of air quality conditions that might be expected to provide a specific level of protection from this effect (U.S. EPA, 2014c, sections 5.4 and 5.7). While noting the uncertainties associated with describing the potential for visible foliar injury and its severity or extent of occurrence for any given air quality conditions, the PA notes the occurrence of O
As noted in the proposal, with regard to other welfare effects, for which the ISA determined a causal or likely causal relationships with O
Based on the considerations described in the PA, summarized in the proposal and outlined here, the PA concludes that the currently available evidence and exposure/risk information call into question the adequacy of the public welfare protection provided by the current standard and provide support for considering potential alternative standards to provide increased public welfare protection, especially for sensitive vegetation and ecosystems in federally protected Class I and similarly protected areas. In this conclusion, staff gives particular weight to the evidence indicating the occurrence in Class I areas that meet the current standard of cumulative seasonal O
The proposal also summarized advice offered by the CASAC in the current review, based on the updated scientific and technical record since the 2008 rulemaking. The CASAC stated that it “[supports] the conclusion in the Second Draft PA that the current secondary standard is not adequate to protect against current and anticipated welfare effects of ozone on vegetation” (Frey, 2014c, p. iii) and that the PA “clearly demonstrates that ozone-induced injury may occur in areas that meet the current standard” (Frey, 2014c, p. 12). The CASAC further stated “[w]e support the EPA's continued emphasis on Class I and other protected areas” (Frey, 2014c, p. 9). Additionally, the CASAC indicated support for the concept of ecosystem services “as part of the scope of characterizing damage that is adverse to public welfare” and “concur[red] that trees are important from a public welfare perspective because they provide valued services to humans, including aesthetic value, food, fiber, timber, other forest products, habitat, recreational opportunities, climate regulation, erosion control, air
In addition, CASAC stated that “relative biomass loss for tree species, crop yield loss, and visible foliar injury are appropriate surrogates for a wide range of damage that is adverse to public welfare,” listing an array of related ecosystem services (Frey, 2014c, p. 10). With respect to RBL for tree species, CASAC states that it is appropriate to identify in the PA “a range of levels of alternative W126-based standards that include levels that aim for not greater than 2% RBL for the median tree species” and that a median tree species RBL of 6% is “unacceptably high” (Frey, 2014c, pp. 13 and 14). With respect to crop yield loss, CASAC points to a benchmark of 5%, stating that a crop RYL for median species over 5% is “unacceptably high” and described crop yield as a surrogate for related services (Frey, 2014c, p. 13).
At the time of proposal, the Administrator took into account the information available in the current review with regard to the nature of O
With regard to considering the adequacy of public welfare protection provided by the current secondary standard at the time of proposal, the Administrator focused first on welfare effects related to reduced native plant growth and productivity in terrestrial systems, taking note of the following: (a) The ISA conclusion of a causal relationship between O
At the time of proposal, the Administrator also recognized the causal relationships between O
Based on her consideration of the conclusions in the PA, and with particular weight given to PA findings pertaining to tree growth-related effects, as well as with consideration of CASAC's conclusion that the current standard is not adequate, the Administrator proposed to conclude that the current standard is not requisite to protect public welfare from known or anticipated adverse effects and that revision is needed to provide the requisite public welfare protection, especially for sensitive vegetation and ecosystems in federally protected Class I areas and in other areas providing similar public welfare benefits. The Administrator further concluded that the scientific evidence and quantitative analyses on tree growth-related effects provide strong support for consideration of alternative standards that would provide increased public welfare protection beyond that afforded by the current O
In considering comments on the need for revision, we first note the advice and recommendations from CASAC with regard to the adequacy of the current standard. In its review of the second draft PA, CASAC stated that it “supports the scientific conclusion in the Second Draft PA that the current secondary standard is not adequate to protect against current and anticipated welfare effects of ozone on vegetation” (Frey, 2014c).
General comments received from the public on the proposal that are based on relevant factors and either supported or opposed the proposed decision to revise
Public comments on the proposal were divided with regard to support for the Administrator's proposed decision to revise the current secondary standard. Many state and local environmental agencies or government bodies, tribal agencies and organizations, and environmental organizations agreed with the EPA's proposed conclusion on the need to revise the current standard, stating that the available scientific information shows that O
Comments from tribal organizations additionally noted that many Class I areas are of sacred value to tribes or provide treaty-protected benefits to tribes, including the exercise of gathering rights. Tribal organizations also noted the presence in Class I areas of large numbers of culturally important plant species, which they indicate to be impacted by air quality conditions allowed by the current standard. The impacts described include visible foliar injury, loss in forest growth and crop yield loss, which these groups describe as especially concerning when occurring on lands set aside for the benefit of the public or that are of sacred value to tribes or provide treaty-protected benefits to tribes.
As described in section IV.B.3 below, the EPA generally agrees with the view of these commenters regarding the need for revision of the current secondary standard and with CASAC that the evidence provides support for the conclusions that the current secondary standard is not adequate to protect public welfare from known or anticipated adverse effects, particularly with respect to effects on vegetation.
A number of industries, industry associations, or industry consultants, as well as some state governors, attorneys general and environmental agencies, disagreed with the EPA's proposed conclusion on the adequacy of the current standard and recommended against revision. In support of their position, these commenters variously stated that the available evidence is little changed from that available at the time of the 2008 decision, and that the evidence is too uncertain, including with regard to growth-related effects and visible foliar injury, to support revision, and does not demonstrate adverse effects to public welfare for conditions associated with the current standard, with some commenters stating particularly that the EPA analysis of Class I areas did not document adverse effects to public welfare. They also cited the WREA modeling analyses as indicating that any welfare improvements associated with a revised standard would be marginal; in particular, compared to the benefits of achieving the current standard. Further, they state that, because of long-range transport of O
As an initial matter, we note that, as noted in sections I.C and IV.A above, the EPA's 2008 decision on the secondary standard was remanded back to the Agency because in setting the 2008 secondary standard, the EPA failed to specify what level of air quality was requisite to protect public welfare from known or anticipated adverse effects or explain why any such level would be requisite. So, in addressing the court remand, the EPA has more explicitly considered the extent to which protection is provided from known or anticipated effects that the Administrator may judge to be adverse to public welfare, and has described how the air quality associated with the revised standard would provide requisite public welfare protection, consistent with CAA section 109(b)(2) and the court's decision remanding the 2008 secondary standard. In undertaking this review, consistent with the direction of the CAA, the EPA has considered the current air quality criteria.
While we recognize, as stated in the proposal, that the evidence newly available in this review is largely consistent with the evidence available at the time of the last review (completed in 2008) with regard to the welfare effects of O
With regard to comments on uncertainties associated with estimates of RBL, we first note that these established, robust E-R functions, which the EPA gave particular emphasis in this review, are available for seedling growth for 11 tree species native to the U.S., as summarized in section IV.A.1.b above and described in the proposal. These E-R functions are based on studies of multiple genotypes of 11 tree species grown for up to three years in multiple locations across the U.S. (U.S. EPA, 2013, section 9.6.1). We have recognized the uncertainty regarding the extent to which the studied species encompass the O
In support of their view that RBL estimates are too uncertain to inform a conclusion that the current standard is not adequately protective of public welfare, some commenters state that some of the 11 E-R functions are based on as few as one study. The EPA agrees that there are two species for which there is only one study supporting the E-R function (Virginia pine and red maple). We also note, however, that those two species are appreciably less sensitive than the median (Lee and Hogsett, 1996; U.S. EPA, 2014c, Table 5C-1). Thus, in the relevant analyses, they tend to influence the median toward a relatively less (rather than more) sensitive response. Further, there are four species for which the E-R functions are based on more than five studies,
Other commenters stated that the scientific evidence does not support revising the NAAQS, pointing to uncertainty related to interpretation of the RBL estimates (based on tree seedling studies) with regard to effects on older tree lifestages. Some of these commenters' claim that mature canopy trees experience reduced O
As noted in section IV.A above and discussed below, the Administrator's final decision on the adequacy of the current standard draws upon, among other things, the available evidence and quantitative analyses as well as judgments about the appropriate weight to place on the range of uncertainties inherent in the evidence and analyses. The strengthening in this review, as compared with the last review, of the basis for the robust E-R functions for tree seedling RBL, as well as other newly available quantitative analyses,
Amongst the newly available information in this review is a new analysis describing W126-based exposures occurring in counties containing Class I areas for which monitoring data indicated compliance with the current standard. The PA gave particular attention to this analysis in consideration of the adequacy of the current standard, and this analysis was also described in the proposal (U.S. EPA, 2014c, Appendix 5B and pp. 5-27 to 5-29; 79 FR 75331-75332, December 17, 2014). Some of the commenters who disagreed with the EPA's conclusion on adequacy of the current standard variously stated that this analysis does not demonstrate growth effects are occurring in Class I areas and that the analysis is too uncertain for reliance on by the Administrator in her judgment on adequacy of the current standard. While the EPA agrees with commenters that data on the occurrence of growth effects in the areas and time periods identified are not part of this analysis, we note that this is because such data have not been collected and consequently cannot be included. As a result, the EPA has utilized measurements of O
The EPA disagrees with commenters regarding the appropriateness of this analysis for the Administrator's consideration. This analysis documents the occurrence of cumulative growing season exposures in these ecosystems which the EPA and CASAC have interpreted, through the use of the established E-R functions for tree seedling growth effects summarized in section IV.A.1.b above (and described in the ISA, PA and proposal), as indicating the potential for growth effects of significance in these protected areas. To the extent that these comments imply that the Administrator may only consider welfare effects that are certain in judging the adequacy of the current standard, we note that section 109(b)(2) of the CAA plainly provides for consideration of both known and anticipated adverse effects in establishing or revising secondary NAAQS.
In support of some commenters' view that this analysis is too uncertain to provide a basis for the Administrator's proposed conclusion that the current standard is not adequate, one commenter observed that the O
In recognition of the influence that other environmental factors can exert in the natural environment on the relationship between ambient O
As support for their view that the Class I area analysis is too uncertain to provide a basis for the Administrator's proposed conclusion that the current standard is not adequate, some commenters stated that forests in Class I areas were composed of mature trees and that the tree seedling E-R functions do not predict growth impacts in mature forests. The EPA disagrees with the commenters' statement that Class I areas are only made up of mature trees. Seedlings exist throughout forests as part of the natural process of replacing aging trees and overstory trees affected by periodic disturbances.
One commenter additionally stated that the EPA has not shown reduced biomass to be adverse to public welfare, variously citing individual studies, most of which are not considering O
Further, we disagree with the commenters on the significance of O
Some commenters disagree with the EPA's consideration of the Class I areas analysis, stating that it is not appropriate for the EPA to evaluate the level of protection offered by the current primary O
As support for their view that the current standard provides adequate protection, some commenters pointed to estimates drawn from the EPA's air quality modeling performed for the RIA, stating that this modeling for an alternative standard level of 70 ppb indicates “only a handful” of monitoring sites approaching as high as 13 ppm-hrs as a 3-year average (
As noted in section IV.A.2 above, and in the proposal, the model-adjusted air quality in the WREA scenario for the current standard does not represent an optimized control scenario that just meets the current standard, but rather characterizes one potential distribution of air quality across a region when all monitor locations meet the standard (79 FR 75322; U.S. EPA, 2014b, section 4.3.4.2). Alternate precursor emissions reductions would be expected to produce different patterns of O
Due to the uncertainty about what actual future emissions control strategies might be and their associated emissions reductions, and the impact such uncertainty might have on modeling estimates involving reductions from recent conditions, we believe it is important to place weight on ambient air monitoring data for recent conditions in drawing conclusions regarding W126 index values that would be expected in areas that meet the current standard. The analysis of air quality data for Class I areas described in the proposal, and updated in Table 3 above (1998-2013), indicates the occurrence of 3-year W126 exposure index values well above 19 ppm-hrs, a cumulative exposure value for which CASAC termed the associated median RBL estimate “unacceptably high,” in multiple Class I areas that meet the current standard (79 FR 75312, December 17, 2014, Table 7; updated in Table 3 above). Additionally, analysis of recent air quality data (2011-2013) for all locations across the U.S. indicates 10 monitor locations distributed across two NOAA climatic regions that meet the current standard and at which 3-year W126 index values are above 19 ppm-hrs, with the highest values extending up to 23 ppm-hrs (Wells, 2015b).
In support of their view that the EPA's modeling supports the conclusion that W126 index values of interest are achieved under the current secondary standard, some commenters additionally state that the W126 values in the WREA are overestimated in unmonitored rural areas due to the much greater prevalence of urban monitors across the U.S. The EPA
In support of their view that the current standard is adequate, some industry commenters additionally cite WREA analyses for the current standard scenario, including the W126 index estimates in national parks, as showing that the current standard provides more than adequate protection, with alternative scenarios providing only marginal and increasingly uncertain benefits. As we noted in the proposal and section IV.A.2 above, there are an array of uncertainties associated with the W126 index estimates, in the current standard scenario and in the other scenarios, which, as they are inputs to the vegetation risk analyses, are propagated into those analyses (79 FR 75323; December 17, 2014). As a result, consistent with the approach in the proposal, the Administrator has not based her decision with regard to adequacy of the current standard in this review on these air quality scenario analyses.
In support of their view that the current standard provides adequate protection and should not be revised, some commenters described their concerns with any consideration of visible foliar injury in the decision regarding the secondary standard. These commenters variously stated that visible foliar injury cannot be reliably evaluated for adversity given lack of available information, is not an adverse effect on public welfare that must be addressed through a secondary standard, and is not directly relatable to growth suppression (and the EPA's use of RBL captures that effect anyway). Additionally, some state that any associated ecosystem services effects are not quantifiable. In sum, the view of these commenters is that it is not appropriate for the Administrator to place any weight on this O
In support of their view that the current standard should be retained, some commenters note the WREA finding for the current standard scenario of no U.S. counties with RYL estimates at or above 5%, the RYL value emphasized by CASAC and state that policy reasons provide support for not focusing on crops in the decision; other commenters state that additional studies on crops and air quality are needed. As
Lastly, we note that many commenters cited the costs of compliance as supporting their view that the standard should not be revised, although as we have described in section I.B above, the EPA may not consider the costs of compliance in determining what standard is requisite to protect public welfare from known or anticipated adverse effects.
Having carefully considered the advice from CASAC and public comments, as discussed above, the Administrator believes that the fundamental scientific conclusions on the welfare effects of O
In considering the adequacy of the current secondary O
As noted in prior reviews, judgments regarding effects that are adverse to public welfare consider the intended use of the ecological receptors, resources and ecosystems affected. Thus, the Administrator recognizes that the median RBL estimate for the studied species is a quantitative tool within a larger framework of considerations pertaining to the public welfare significance of O
The Administrator also recognizes that O
The Administrator also takes note of the long-established evidence of consistent association of the presence of visible foliar injury with O
Based on these considerations, and taking into consideration the advice and recommendations of CASAC, the Administrator concludes that the protection afforded by the current secondary O
The elements of the standard—indicator, averaging time, form, and level—serve to define the standard and are considered collectively in evaluating the welfare protection afforded by the secondary standard. Section IV.C.1 below summarizes the basis for the proposed revision. Significant comments received from the public on the proposal are discussed in section IV.C.2 and the Administrator's final decision on revisions to the secondary standard is described in section IV.C.3.
At the time of proposal, in considering what revisions to the secondary standard would be appropriate, the Administrator considered the ISA conclusions regarding the weight of the evidence for a range of welfare effects associated with O
As summarized in the proposal, in identifying alternative secondary standards appropriate to consider in this review, the PA focused on standards based on a cumulative, seasonal, concentration-weighted form consistent with the CASAC advice in the current and last review. Based on conclusions of the ISA, as also summarized in section IV.A above, the PA considered a cumulative, seasonal, concentration-weighted exposure index to provide the most scientifically defensible approach for characterizing vegetation response to ambient O
Based on these considerations, the PA concluded it to be appropriate to retain the current indicator of O
As summarized in the proposal, the PA noted that, due to the variability in the importance of the associated ecosystem services provided by different species at different exposures and in different locations, as well as differences in associated uncertainties and limitations, it is essential to consider the species present and their public welfare significance, together with the magnitude of the ambient concentrations in drawing conclusions regarding the significance or magnitude of public welfare impacts. Therefore, in development of the PA conclusions, staff took note of the complexity of judgments to be made by the Administrator regarding the adversity of known and anticipated effects to the
In specifically evaluating exposure levels, in terms of the W126 index, as to their appropriateness for consideration in this review with regard to providing the desired level of vegetation protection for a revised secondary standard, the PA focused particularly on RBL estimates for the median across the 11 tree species for which robust E-R functions are available. Table 4 below presents these estimates (U.S. EPA, 2014c, Appendix 5C, Table 5C-3; also summarized in Table 8 of the proposal). In so doing and recognizing the longstanding, strong evidence base supporting these relationships, the PA also noted uncertainties regarding inter-study variability for some species, as well as with regard to the extent to which tree seedling E-R functions can be used to represent mature trees. As summarized in the proposal, the PA conclusions on a range of W126 levels appropriate to consider are based on specific advice from CASAC with regard to median tree seedling RBL estimates that might be considered unacceptably high (6%), as well as its judgment on a RBL benchmark (2%) for identification of the lower end of a W126 index value range for consideration that might give more emphasis to the more sensitive tree seedlings (Frey, 2014c, p. 14).
With regard to secondary standard revisions appropriate to consider in this review, as summarized in the proposal, the PA concluded it to be appropriate to consider a W126-based secondary standard with index values within the range of 7 to 17 ppm-hrs and a form averaged over 3 years (U.S. EPA, 2014c, section 6.7). The PA additionally recognized the role of policy judgments required of the Administrator with regard to the public welfare significance of identified effects, the appropriate weight to assign the range of uncertainties inherent in the evidence and analyses, and ultimately, in identifying the requisite protection for the secondary O
The PA additionally recognized that to the extent the Administrator finds it useful to consider the public welfare protection that might be afforded by revising the level of the current standard, this is appropriately judged by evaluating the impact of associated O
Advice received from the CASAC during the current review, similar to that in the last review, recommended retaining O
The proposal additionally summarized several analyses of air quality that considered relationships between metrics based on a 3-year W126 index and based on the form and averaging time of the current standard, the “fourth-high” metric (U.S. EPA, 2014c, Chapter 2, Appendix 2B and section 6.4; Wells, 2014a), as well as describing the uncertainties and limitations associated with these analyses. The proposal concluded that these analyses suggest that, depending on the level, a standard of the current averaging time and form can be expected to control cumulative seasonal O
Analyses of the most recent periods studied in the two analyses (2009-2011 and 2011-2013) had similar findings regarding the highest W126 metric values occurring at monitoring sites that meet alternative levels of the fourth-high metric (U.S. EPA, 2014c, section 6.4; Wells, 2014a). In both analyses, the highest W126 metric values were in the Southwest and West NOAA climatic regions. In both analyses, no monitoring sites for which the fourth-high metric was at or below 70 ppb had a W126 metric value above 17 ppm-hrs (U.S. EPA, 2014c, Figure 2B-3b; Wells, 2014a, Table 4). All U.S. regions were represented in these subsets. In the 2011-2013 subset of sites for which the fourth-high metric was at or below a potential alternative primary standard level of 65 ppb, no monitoring sites had W126 metric values above 11 ppm-hrs (Wells, 2014a, Table 4).
At the time of proposal, the Administrator concluded it to be appropriate to continue to use O
The Administrator proposed to retain the current averaging time and form and to revise the level of the current secondary standard to a level within the range of 0.065 to 0.070 ppm. She based this proposal on her provisional conclusions regarding the level of cumulative seasonal O
To identify the range of cumulative seasonal exposures, in terms of the W126 index, expected to be associated with the appropriate degree of public welfare protection, the Administrator gave primary consideration to growth-related impacts, using tree seedling RBL estimates for a range of W126 exposure index values and CASAC advice regarding such estimates. Additionally taking into account judgments on important uncertainties and limitations inherent in the current available scientific evidence and quantitative assessments, and judgments regarding the extent to which different RBL estimates might be considered indicative of effects adverse to public welfare, the Administrator proposed that ambient O
Significant comments from the public regarding revisions to the secondary standard are addressed in the subsections below. We first discuss comments related to our consideration of growth-related effects and visible foliar injury in identifying appropriate revisions to the standard (sections IV.C.2.a and IV.C.2.b). Next, we address comments related to the use of the W126 metric in evaluating vegetation effects and public welfare protection and comments related to the form and averaging time for the revised standard (sections IV.C.2.c and IV.C.2.d). Comments on revisions to the level of the standard are described in section IV.C.2.e, and those related to the way in which today's rulemaking addresses the 2013 court remand are addressed in section IV.C.2.f. Other significant comments related to consideration of a revised secondary standard, and that are based on relevant factors, are addressed in the Response to Comments document.
In considering public comments received on the consideration of growth-related effects of O
In addition, regarding consideration of RBL benchmarks for tree seedlings, the CASAC stated that “[a] 2% biomass loss is an appropriate scientifically based value to consider as a benchmark of adverse impact for long-lived perennial species such as trees, because effects are cumulative over multiple
With regard to consideration of effects on crops, in addition to their comments regarding a median species RYL over 5% yield loss, noted above (Frey, 2014c, p. 13), the CASAC further noted that “[c]rop loss appears to be less sensitive than these other indicators, largely because of the CASAC judgment that a 5% yield loss represents an adverse impact, and in part due to more opportunities to alter management of annual crops” (Frey, 2014c, p. 14).
Comments from the public with regard to how the EPA considered growth-related effects in the proposed decision on a revised secondary standard varied. Generally, those commenters who recommended against revision of the standard expressed the view that RBL estimates based on the established E-R functions for the 11 studied species, and their pertinence to mature trees, were too uncertain to serve as a basis for judgments regarding public welfare protection afforded by the secondary standard. The EPA generally disagrees with this view, as discussed in section IV.B.2 above, and addressed in more detail in the Response to Comments document.
Some commenters also took note of the unclear basis for CASAC's 2% benchmark, stating that the CASAC advice on this point is “not wholly scientific,” given that it referenced the 1996 workshop, which provided little specificity as to scientific basis for such a benchmark; based on this, the commenters described this CASAC advice as a policy judgment and described the important role of the EPA's judgment in such instances. As noted in section IV.E.3 of the proposal, we generally agree with these commenters regarding the unclear scientific basis for the 2% value. Consistent with this advice from CASAC, however, the range of levels for a revised secondary standard that the PA concluded was appropriate for the Administrator to consider did include a level for which the estimated median RBL across the 11 studied tree species would be 2%, as well as a level for which the median RBL would be below 2% (U.S. EPA, 2014c, section 6.7 and Tables 6-1 and 5C-3), and, as described in the proposal, the Administrator considered the conclusions of the PA in reaching her proposed decision that it was appropriate to consider a range for the revised secondary standard that did not focus on this benchmark. The Administrator has further considered and explained any differences from CASAC's recommendations on this point in her final decision, as described in section IV.C.3 below.
Some of the state and local environmental agencies and organizations and environmental groups that supported the EPA's proposed decision to revise the secondary standard additionally indicated their view that the EPA should give more weight to growth-related effects by setting the standard at a level for which the estimated RBL would be at or below 2% in the median studied species. In support of this recommendation, the commenters cited the CASAC advice and stated that the EPA's rationale deviates from that advice with regard to consideration of RBL. In so doing, the commenters implied incorrectly that the EPA's proposal did not put the most weight on the median RBL. In fact, in considering RBL as a metric for growth effects, the Administrator's proposed conclusions focused solely on the median RBL estimates, indicating that appreciable weight was given to growth-related effects and on the median RBL. Additionally, the commenters implied that the EPA misconstrued the CASAC comment on 6% RBL to indicate that it was acceptable. Yet, the proposal notes CASAC's view that a 6% RBL is “unacceptably high” nine times, and, in section IV.B.3 above, the Administrator takes note of this view in reaching the decision that the current standard should be revised. The EPA considers this statement from CASAC, provided in the context of considering effects related to different W126 index values, to be of a different nature than CASAC advice discussed above that options for the EPA consideration “include” a level that aims for median RBL at or below 2%.
The comments that state that the standard should control cumulative exposures to levels for which the estimated median species RBL is at or below 2% provided little rationale beyond citing to CASAC advice. We note, however, that the CASAC did not specify that the revised secondary standard be set to limit cumulative exposures to that extent. Nor, in identifying a range of alternatives for the EPA to consider, did CASAC recommend that the EPA consider
In citing to CASAC advice, commenters quoted the CASAC characterization of a 2% RBL as “an appropriate scientifically based value to consider as a benchmark of adverse impact for long-lived perennial species such as trees, because effects are cumulative over multiple years” (Frey, 2014, p. 14). Presumably to indicate reasoning for this statement, the subsequent sentence in the same CASAC letter referenced findings for biomass loss in aspen exposed to elevated O
Some commenters recommended revision of the standard to 7 ppm-hrs as a W126 form stating that such a change is needed to protect against climate change. In so doing, one commenter expressed the view that the relatively lesser weight the EPA placed on the WREA estimates of carbon storage (in terms of CO
In considering public comments received on the EPA's consideration of visible foliar injury in its decision on a revised secondary standard, the EPA first notes related advice and comments from the CASAC received during development of the PA. The CASAC stated that “[w]ith respect to the secondary standard, the CASAC concurs with the EPA's identification of adverse welfare effects related to . . . damage to resource use from foliar injury” (Frey, 2014, p. iii). In its comments on levels of a W126-based standard, the CASAC, seemingly in reference to the WREA visible foliar injury analyses, additionally stated that “[a] level below 10 ppm-hrs is required to reduce foliar injury” (Frey, 2014, pp. iii and 15), with “W126 values below 10 ppm-hr required to reduce the number of sites showing visible foliar injury” (Frey, 2014, p. 14).
Public comments were generally split between two views, either that visible foliar injury was not appropriate to consider in decisions regarding the standard, based on variously identified reasons, or that it should be considered and it would lead the EPA to focus on a W126 value below approximately 10 ppm-hrs. Comments of the former type are discussed in section IV.B.2 above, with, in some cases, additional detail in the Response to Comments document. Commenters expressing the latter view variously cite CASAC advice and figures from the WREA cumulative analysis of USFS biosite data with WREA W126 index value estimates. The EPA disagrees that only a reduction in cumulative exposures to W126 index values below 10 ppm-hrs will affect the occurrence or extent of visible foliar injury. In so doing, we note that the extensive evidence, which is summarized in the ISA (including studies of the USFS biomonitoring program), analyses in the 2007 Staff Paper and also observations based on the WREA dataset do not support this conclusion.
The evidence regarding visible foliar injury as an indicator of O
With regard to the comments referencing the WREA cumulative analysis of USFS FHM/FIA biosite data or related CASAC comments, we note some clarification of this analysis. This analysis does not show, as implied by the comments, that at W126 index values above 10 ppm-hrs, there is little change with increasing W126 index in
To more fully address the comments related to this WREA analysis, we have drawn several additional observations from the WREA dataset, re-presenting the same data in a different format in a technical memorandum to the docket (Smith and Murphy, 2015). Contrary to the implication of the statements from the commenters and CASAC that no reduction in the occurrence of visible foliar injury can be achieved with exposures above 10 ppm-hrs, both the proportion of records with injury and the average biosite index are lower for groups of records with W126 index estimates at or below 17 ppm-hrs compared to the group for the highest W126 index range. This is true when considered regardless of soil moisture conditions (all records), as well as for dry, normal and wet records, separately (Smith and Murphy, 2015, Table 2). The pattern of the two measures across record groups with lower W126 index values differs with moisture level, with the wetter than normal records generally showing decreasing proportions of injured sites and decreasing average biosite index with lower W126 index values, while little difference in these measures is seen among the middle W126 values although they are lower than the highest W126 index group and higher than the lowest W126 index group (Smith and Murphy, 2015, Table 2). In summary, the EPA disagrees with commenters, noting that the available information, including additional observations from the WREA dataset, indicate declines in the occurrence of visible foliar injury across decreasing W126 index values that are higher than 10 ppm-hrs.
In considering public comments received on the EPA's use of the W126 exposure index in its decision on a revised secondary standard, the EPA first notes related advice and comments from the CASAC received during development of the PA. Although we recognize that CASAC's comments on the W126 index were provided in the context of its recommendation for a secondary standard of that form, we find them to also relate to our use of the W126 metric in evaluating the magnitude and extent of vegetation effects that might be expected and conversely the level of protection that might be provided under different air quality conditions. In comments on the first draft PA, the CASAC stated that “discussions and conclusions on biologically relevant exposure metrics are clear and compelling and the focus on the W126 form is appropriate” (Frey and Samet, 2012a). With regard to specific aspects of the W126 index, the CASAC concurred with the second draft PA focus on “the biologically-relevant W126 index accumulated over a 12-hour period (8 a.m.-8 p.m.) over the 3-month summation period of a single year resulting in the maximum value of W126” (Frey, 2014c, p. iii).
The CASAC advice on levels of the W126 index on which to focus for public welfare protection recommended a level within the range of 7 ppm-hrs to 15 ppm-hrs (Frey, 2014c, p. iii). We note, however, as summarized in section IV.E.3 of the proposal, that this advice was provided in the context of the CASAC review of the second draft PA, which concluded that a range from 7 to 17 ppm-hrs was appropriate to consider. In considering the upper end of this range, the CASAC consulted Table 6-1 of the second draft PA which indicated for a W126 index value of 17 ppm-hrs an RBL estimate of 6%, a magnitude that CASAC described as “unacceptably high” and that contributed to a lack CASAC support for W126 exposures values higher than 15 ppm-hrs (Frey, 2014c, p. 14; U.S. EPA 2014d, Table 6-1). As noted in section IV.E.3 of the proposal, revisions to the RBL estimate table in the final PA, which were made in consideration of other CASAC comments, have resulted in changes to the median species RBL estimate associated with each W126 index value, such that the median species RBL estimate for a W126 index value of 17 ppm-hrs in this table in the final PA was 5.3%, rather than the “unacceptably high” value of 6% (U.S. EPA, 2014c, Table 6-1; U.S. EPA, 2014d, Table 6-1; Frey, 2014c, p. 14).
The majority of comments on the W126 index concurred with its use for assessing O
Some aspects of these comments have been addressed in sections IV.C.2.a and IV.C.2.b above. In the Response to Comments document, we have additionally addressed other comments that recommend a focus on W126 index values for specific reasons other than generally citing the CASAC recommended range. Further, in her consideration of a target level of protection for the revised secondary standard in section IV.C.3 below, the Administrator has considered comments from the CASAC regarding the basis for their recommended range.
An additional comment from an organization of western state air quality managers indicated a concern with the use of W126 for vegetation in arid and high altitude regions, such as those in the western states, which the
Among the small number of commenters recommending against using the W126 metric to assess O
Some commenters also raised concerns regarding the sensitivity of vegetation in desert areas where plants take in ambient air during nighttime rather than daylight hours, such that little exposure occurs from 8 a.m. to 8 p.m., stating that the W126 index as defined by the EPA to cumulate hourly O
Further, some commenters who agreed with a focus on the W126 exposure index also stated that the EPA's definition of the index for the daylight hours of 8 a.m. to 8 p.m. and a 3-month period was not appropriate, stating that derivation of the W126 metric should involve summing concentrations for all 24 hours in each day and all months in each year to avoid underestimating O
The commenters supporting the use of the W126 exposure index were divided with regard to whether the EPA should focus on an annual index or one averaged over three years. Some of the commenters indicating support for the EPA's proposed focus on a 3-year average W126 index stated that this was appropriate in light of the wide variations in W126 index values that can occur on a year-to-year basis as a result of the natural variation of climatic conditions that have a direct impact on O
The EPA agrees with commenters that, as discussed in the PA and the proposal, depending on the exposure conditions, O
Further, we note that among the judgments contributing to the Administrator's decision on the level of protection appropriate for the secondary standard are judgments regarding the weight to place on the evidence of specific vegetation-related effects estimated to result across a range of cumulative seasonal concentration-weighted O
In considering comments received on the proposed form for the revised standard, the EPA first notes the advice and comments from the CASAC, received in its review of the second draft PA. Similar to its advice in the last review, the CASAC recommended “establishing a revised form of the secondary standard to be the biologically relevant W126 index” (Frey, 2014c, p. iii). With regard to its reasons for this view, the CASAC cites the PA in stating that it “concurs with the justification in [section 5.7] that the form of the standard should be changed from the current 8-hr form to the cumulative W126 index” (Frey, 2014c, p. 12). In addressing specific aspects of this index, the CASAC concurred with the EPA's focus on the 3-month period with the highest index value and further states that “[a]ccumulation over the 08:00 a.m.-08:00 p.m. daytime 12-hour period is a scientifically acceptable and recommended means of generalizing across latitudes and seasons” (Frey, 2014c, p. 13). As section 5.7 of the PA discusses the W126 index in the context of the support in the evidence for use of the W126 exposure index for assessing impacts of O
The public comments on the form for a revised secondary standard were divided. Most of the state and local environmental agencies or governments, and all of the tribal agencies and organizations that provided comments on the form for the secondary standard concurred with the EPA's proposed decision, as did the industry commenters. These commenters generally indicated agreement with the rationale provided in the proposal that drew from the EPA analyses of recent air quality data examining relationships at sites across the U.S. between values of the fourth-high metric (the current design value) and values of a 3-year average W126-based metric, stating that this analysis showed that a standard in the form of the fourth-high metric, as proposed, can provide air quality consistent with or below the range of 3-year W126 exposure index values identified in the proposal. Some commenters additionally stated that the choice of form was a policy decision for the EPA and that little or no additional protection of public welfare would be gained by adopting a W126-based form. Some of these commenters provided analyses of data for their state or region that further supported this view. As
Some commenters, including a regional organization of state agencies and two groups of environmental organizations, submitted comments recommending revision of the standard to a cumulative, seasonal form based on the W126 index. In support of their position, these commenters generally cited CASAC advice, variously additionally indicating their view that the standard form should be a metric described as biologically relevant, and that the existing form, with a level in the proposed range, would not provide adequate ecosystem protection. Some commenters additionally suggested that the EPA cannot lawfully retain the form and averaging time that were initially established for purposes of the primary standard when the EPA has identified the W126 index as a metric appropriate for judging vegetation-related effects on public welfare. With regard to the EPA air quality analyses, summarized in the proposal, of the W126 index values at sites where O
We agree with public commenters and CASAC regarding the appropriateness of the W126 index (the sum of hourly concentrations over a specified period) as a biologically relevant metric for assessing exposures of concern for vegetation-related public welfare effects, as discussed in the proposal, PA and ISA. Accordingly, we agree that this metric is appropriate for use in considering the protection that might be expected to be afforded by potential alternative secondary standards, as discussed in section IV.C.2.c above. We disagree with commenters, however, that use of the W126 metric for this purpose dictates that we must establish a secondary standard with a W126 index form.
In support of this position, we note the common use, in assessments conducted for NAAQS reviews, of exposure metrics that differ in a variety of ways from the ambient air concentration metrics of those standards.
Further, depending on the evidence base, some NAAQS reviews may consider multiple exposure metrics in assessing risks associated with a particular pollutant in ambient air in order to judge the adequacy of an existing standard in providing the required level of protection. And a standard with an averaging time of one duration may provide protection against effects elicited by exposures of appreciably shorter or longer durations. For example, in the current review of the primary O
Thus, we note that different metrics may logically, reasonably, and for technically sound reasons, be used in assessing exposures of concern or characterizing risk as compared to the metric of the standard which is used to control air quality to provide the desired degree of protection. That is, exposure metrics are used to assess the likely occurrence and/or frequency and extent of effects under different air quality conditions, while the air quality standards are intended to control air quality to the extent requisite to protect from the occurrence of public health or welfare effects judged to be adverse. In this review of the secondary standard for O
Moreover, we note that the CAA does not require that the secondary O
With regard to the commenter's emphasis on advice from CASAC on the form of the secondary standard, the EPA agrees with the importance of giving such advice careful consideration. The EPA further notes, however, that the Administrator is not legally precluded from departing from CASAC's recommendations, when she has provided an explanation of the reasons for such differences.
In disagreeing with the EPA's conclusions drawn from analyses of recent air quality data on the extent to which cumulative seasonal exposures might be limited to within or below the identified 3-year average W126 index values by controlling air quality using different values for the fourth-high metric, one group of environmental organizations emphasized the range of W126 index values that occur at monitors with concentrations at or below specific values for the fourth-high metric. For monitor observations for which the fourth-high metric was at or below 70 ppb, this commenter group stated that some sites have 3-year average W126 index values above 17 ppm-hrs and noted a maximum 3-year W126 index value of 19.1 ppm-hrs, while additionally noting occurrences of other W126 values above the CASAC range of 7 to 15 ppm-hrs. This commenter additionally stated that the air quality data “do not support a claim of congruence” between the fourth-high and W126 metrics (
The EPA does not agree with the commenter's statements regarding the relationship between the two metrics.
With regard to the highest 3-year average W126 exposure index values that might reasonably be expected in the future in areas where a revised standard with a fourth-high form is met, we disagree with the commenters as to the significance of the W126 index value of 19.1 ppm-hrs in the 13-year dataset. This value, for a site during the period 2006-2008, is the only occurrence at or above 19 ppm-hrs in the nearly 4000 3-year W126 index values—across the 11 3-year periods extending back in time from 2013—for which the fourth-high metric for the same monitor location is at or below 70 ppb. This is clearly an isolated occurrence.
In considering this comment, we have expanded the technical memorandum that was available at the time of proposal (Wells, 2014a). The expanded memorandum describes the same air quality analyses for 3-year periods from 2001 through 2013 as the 2014 memorandum, and includes additional summary tables for all 3-year periods from 2001 through 2013 as well as tables for the most recent period, 2011-2013 (Wells, 2015b). After the 3-year W126 index value of 19 ppm-hrs, the next three highest 3-year average W126 index values, which are the only other such values above 17 ppm-hrs in the 13-year dataset, and which also occur during periods in the past, round to 18 ppm-hrs (Wells, 2015b). Additionally, we note that reductions in the fourth-high metric over the 13-year period analyzed are strongly associated with reductions in the cumulative W126 index (Wells, 2014a, Figure 11, Table 6; Wells, 2015b). Specifically, the regression analysis of changes in W126 index between the 2001-2003 period and the 2011-2013 period with changes in the fourth-high metric across the same periods indicates a fairly linear and positive relationship between reductions of the two types of metrics, with, on average, a change of approximately 0.7 ppm-hr in the W126 index per ppb change in the fourth-high metric value. From this information we conclude that W126 exposures above 17 ppm-hrs at sites for which the fourth-high metric is at or below 70 ppb would be expected to continue to be rare in the future, particularly as steps are taken to meet a 70 ppb standard.
With regard to the comment that the relationship between the two metrics varies across locations, the EPA agrees that there is variation in cumulative seasonal O
As part of their rationale in support of revising the current form and averaging time, one commenter pointed to the regional variation in the highest W126 index values expected at sites that just meet a fourth-high metric of 70 ppb, based on the EPA's analysis of recent air quality data available at the time of the proposal (Wells, 2014a). This commenter observed that, while in some U.S. regions, locations that meet a potential alternative standard with the current form and a level of 70 ppb also have 3-year average W126 index values no higher than 17 ppm-hrs, the highest W126 index values in other parts of the country are lower. As a result, the commenter concluded that such a standard would result in regionally differing levels of welfare protection. The commenter additionally states that, for extreme values, a W126 form for the secondary standard would also offer different levels of protection, although with the primary standard setting the upper boundary for such values.
The EPA recognizes that a standard with the current form might be expected to result in regionally differing distributions of W126 exposure index values (including different maximum values) depending on precursor sources, local meteorology, and patterns of O
The CAA requirement in establishing a standard is that it be set at a level of air quality that is requisite, meaning “sufficient, but not more than necessary” (
In addressing the remand of the 2008 secondary standard in this rulemaking, as discussed in section IV.C.2.e below, the EPA recognizes that it must explain the basis for concluding that the standard selected by the Administrator specifies air quality that will provide the degree of public welfare protection needed from the secondary standard (
Some comments specifically addressed the level for a revised secondary standard of the current form and averaging time. Of the comments that addressed this, some from states or industry groups generally supported a level within the proposed range, frequently specifying the upper end of the range (70 ppb), while comments
Both industry groups and a group of environmental advocacy organizations submitted comments on the extent to which the proposal addressed the July 2013 remand of the secondary standard by the U.S. Court of Appeals for the D.C. Circuit. The former generally concluded that the proposal had adequately addressed the remand, while the latter expressed the view that the EPA had failed to comply with the court's remand because it had failed to identify the target levels of vegetation protection for which the proposed range of standards would provide the requisite protection, claiming that the identified W126 index range of 13-17 ppm-hrs was not based on a proposed level of protection against biomass loss, carbon storage loss, or foliar injury that the EPA had identified as requisite for public welfare.
We agree with the comments that state that we have addressed the court's remand. More specifically, with this rulemaking, including today's decision and the Administrator's conclusions described in section IV.C.3 below, the EPA has fully addressed the remand of the 2008 secondary O
Today's rulemaking both satisfies the requirements of section 109(b)(2) of the Act and addresses the issues raised in the court's remand. In this rulemaking, the Administrator has established a revised secondary standard that replaces the remanded 2008 secondary standard. In so doing, based on her consideration of the currently available evidence and quantitative exposure and air quality information, as well as advice from CASAC and input from public comments, the Administrator has described the requisite public welfare protection for the secondary standard and explained how the standard selected specifies air quality that will provide that protection. As explained in detail in IV.C.3 below, in this review the Administrator is describing the public welfare protection she finds requisite in terms of seedling RBL in the median species, which serves as a surrogate for a broader array of O
To the extent the comments suggest that the EPA is required in establishing a standard to identify a precise and quantified level of public welfare protection that is requisite with respect to every potentially adverse public welfare impact (
In reaching her decision on the appropriate revisions to the secondary standard, the Administrator has drawn on (1) the ISA conclusions regarding the weight of the evidence for a range of welfare effects associated with O
The Administrator concludes it is appropriate to continue to use O
In her decision on the other elements of the standard, the Administrator has considered the body of evidence and information in a systematic fashion, giving appropriate consideration to the important findings of the ISA as to the effects of O
As an initial matter, the Administrator recognizes the robustness of the longstanding evidence, described in the ISA, of O
A central issue in this review of the secondary standard, as in the last review (completed in 2008), has been consideration of the role for a cumulative seasonal exposure index. In the last review, the Administrator proposed such an index as one of two options for the form of a revised standard. The Administrator's decision in that review was to retain the existing form and averaging time, while revising the standard level to provide the desired level of protection. As described in section IV.A above, this decision was remanded to the EPA in 2013 by the DC Circuit. In the current review, the ISA evaluates the evidence and concludes that, among the approaches investigated, quantifying exposure with a cumulative seasonal index best captures the aspects of exposure that relate to effects on vegetation, particularly those related to growth and yield. The PA considered this finding both in the context of assessing potential impacts, and, conversely, the protection from such impacts that might be realized, as well as in the context of using a cumulative seasonal exposure index as a form for the secondary standard. In the proposal, the Administrator focused on the former context, as an exposure index, while additionally soliciting comment on use of the index as the form for the revised standard. Advice from CASAC, all of which was received prior to the proposal, has largely emphasized the latter context, and that was also the focus of some comments.
In considering revisions to the secondary standard that will specify a level of air quality to provide the necessary public welfare protection, the Administrator focuses on use of a cumulative seasonal exposure index, including specifically the W126 index as defined in the proposal, for assessing exposure, both for making judgments with regard to the potential harm to public welfare posed by conditions allowed by various levels of air quality and for making the associated judgments regarding the appropriate degree of protection against such potential harm. In so doing, the Administrator takes note of the conclusions in the ISA and PA, with which the CASAC concurred, that, based on the currently available evidence, a cumulative seasonal concentration-weighted index best captures the aspects of ecosystem exposure to O
The Administrator has considered conclusions of the ISA and PA, as well as advice from CASAC and public comments, regarding different cumulative, concentration-weighted metrics, and different temporal definitions of aspects of these metrics. The Administrator takes note of the PA conclusions in support of the W126 exposure index, recognized by the ISA for its strength in weighting potentially damaging O
In considering the appropriate exposure index to facilitate assessment of the level of protection afforded to the public welfare by alternative secondary standards in the proposal, the Administrator concluded that a 3-year average W126 index was appropriate for these purposes. A number of considerations raised in the PA influenced the Administrator's conclusion at the time of proposal, in combination with public welfare judgments regarding the weight to place on the evidence of specific vegetation-related effects estimated to result across a range of cumulative seasonal concentration-weighted O
The Administrator continues to place weight on key aspects raised in the PA and summarized in the proposal on the appropriateness of considering a 3-year average index. The Administrator notes the PA consideration of the potential for multiple consecutive years of critical O
As she did for the proposal, the Administrator has considered advice from CASAC in this area, including the CASAC comments that it favors a W126-based secondary standard with a single year form, that its recommended range of levels relates to such a form, and that a lower range (
While the Administrator recognizes the scientific information and interpretations, as well as CASAC advice, with regard to a single-year exposure index, she also takes note of uncertainties associated with judging the degree of vegetation impacts for annual effects that would be adverse to public welfare. Even in the case of annual crops, the assessment of public welfare significance is unclear for the reasons discussed below related to agricultural practices. The Administrator is also mindful of the variability in ambient air O
In reaching a conclusion on the amount of public welfare protection from the presence of O
The Administrator finds the coherence and strength of the weight of evidence concerning effects on vegetation from the large body of available literature compelling. The currently available evidence addresses a broad array of O
In recognition of the CASAC advice and the potential for adverse public welfare effects, the Administrator has considered the nature and degree of effects of O
Likewise, the Administrator also notes that less protection related to growth effects may be called for in the case of other types of vegetation or vegetation associated with other uses or services. For example, the maintenance of adequate agricultural crop yields is extremely important to the public welfare and currently involves the application of intensive management practices. With respect to commercial production of commodities, the Administrator notes that judgments about the extent to which O
The Administrator also recognizes that O
Based on the above considerations, in identifying the appropriate level of protection for the secondary standard, the Administrator finds it appropriate to focus on sensitive trees and other native species known or anticipated to occur in protected areas such as Class I areas or on other lands set aside by the Congress, states, tribes and public interest groups to provide similar benefits to the public welfare, for residents on those lands, as well as visitors to those areas. In light of their public welfare significance, the Administrator gives particular weight to protecting such vegetation and ecosystems. Given the reasons for the special protection afforded such areas (identified in section I.A.3 above), she recognizes the importance of protecting these natural forests from O
For considering the appropriate public welfare protection objective for a revised standard, the Administrator finds appropriate and useful the estimates of tree seedling growth impacts (in terms of RBL) associated with a range of W126-based index values developed from the robust E-R functions for 11 tree species, that were described in the PA and proposal and are summarized in Table 4 above. In making judgments based on those observations, however, the Administrator has considered the broader evidence base and public welfare implications, including associated strengths, limitations and uncertainties. Thus, in drawing on estimates from this table, she is not making judgments simply about a specific magnitude of growth effect in seedlings that would be acceptable or unacceptable in the natural environment. Rather, the Administrator is using the estimates in the table, as suggested by CASAC and emphasized by some commenters, as a surrogate or proxy for consideration of the broader array of vegetation-related effects of potential public welfare significance, that include effects on growth of individual sensitive species and extend to ecosystem-level effects, such as community composition in natural forests, particularly in protected public lands, as well as forest productivity. In so doing, she notes that CASAC similarly viewed biomass loss as “a scientifically valid surrogate of a variety of adverse effects to public welfare” (Frey, 2014c, p. 10). Thus, in considering the appropriate level of public welfare protection for the revised standard, the Administrator gives primary attention to the relationship between W126 exposures and estimates of RBL in tree seedlings in Table 4, finding this to be a useful quantitative tool to inform her judgments in this matter.
In considering the RBL estimates in Table 4 above (drawn from the final PA), the Administrator takes note of comments from CASAC that also give weight to these relationships in formulating its advice and notes the CASAC comments on specific RBL values (Frey, 2014c). In so doing, she considers and contrasts comments and their context on RBL estimates of 2% and 6% for the median studied species.
With regard to the CASAC advice regarding 2% RBL for the median studied tree species, the Administrator notes, as an initial matter, the unclear basis for such a focus, as described in section IV.C.2 above and in the proposal. Further, she notes that the CASAC advice related to this RBL value was that it would be appropriate for the range of levels identified in the PA for the Administrator's consideration to “include[] levels that aim for not greater than 2% RBL for the median tree species” (Frey, 2014c, p. 14). As described in the proposal, the range identified in the PA, which the Administrator considered, extended down to W126 index levels for which the estimated RBL in the median tree species is less than or equal to 2%, consistent with the CASAC advice. In addition, the Administrator notes that only the lowest portion of this range (7-8 ppm-hrs) corresponds to an estimated RBL for the median tree species of less than or equal to 2%, with the remainder of CASAC's range (up to 15 ppm-hrs) associated with higher median RBL estimates. Thus, the Administrator understands CASAC to have identified 2% RBL for the median tree species as a benchmark falling within, and at one end of, the range of levels of protection that the CASAC considers appropriate for the revised standard to provide. However, the fact that the CASAC range included levels for which the RBL estimates were appreciably greater than 2% indicates that CASAC did not judge it necessary that the revised standard be based on the 2% RBL benchmark. Accordingly, the Administrator proposed revisions to the secondary standard based on options related to higher RBL estimates and associated exposures. After also considering public comments, the Administrator continues to consider the uncertainty regarding the extent to which associated effects on vegetation at lower O
With regard to the CASAC comments on a 6% RBL estimate, the Administrator takes particular note of their characterization of this level of effect in the median studied species as “unacceptably high” (Frey, 2014c, pp. iii, 13, 14). These comments were provided in the context of CASAC's considering the significance of effects associated with a range of alternatives for the secondary standard. Moreover, the range recommended by CASAC excluded W126 index values for which the median species was estimated to have a 6% RBL,
In the Administrator's consideration of the RBL estimates to inform judgments on O
In considering the CASAC advice, the Administrator notes that her judgments on a 3-year average index focus on the level of confidence in conclusions that might be drawn with regard to single as compared to multiple year impacts, as described above. For example, the Administrator, while recognizing the strength of the evidence with regard to quantitative characterization of O
In focusing on cumulative exposures associated with a median RBL estimate somewhat below 6%, the Administrator considers the relationships in Table 4, noting that the median RBL estimate is 6% for a cumulative seasonal W126 exposure index of 19 ppm-hrs. Considering somewhat lower values, the median RBL estimate is 5.7% (which rounds to 6%) for a cumulative seasonal W126 exposure index of 18 ppm-hrs and the median RBL estimate is 5.3% (which rounds to 5%) for 17 ppm-hrs. In light of her decision that it is appropriate to use a 3-year cumulative exposure index for assessing vegetation effects (described above), the potential for single-season effects of concern, and CASAC comments on the appropriateness of a lower value for a 3-year average W126 index, the Administrator concludes it is appropriate to identify a standard that would restrict cumulative seasonal exposures to 17 ppm-hrs or lower, in terms of a 3-year W126 index, in nearly all instances. In reaching this conclusion, based on the current information to inform consideration of vegetation effects and their potential adversity to public welfare, she additionally judges that the RBL estimates associated with marginally higher exposures in isolated, rare instances are not indicative of effects that would be adverse to the public welfare, particularly in light of variability in the array of environmental factors that can influence O
While giving primary consideration to growth effects using the surrogate of RBL estimates based on tree seedling effects, the Administrator also recognizes the longstanding and robust evidence of O
The Administrator has additionally considered the evidence and analyses of visible foliar injury. In so doing, the Administrator notes the ISA conclusion that “[e]xperimental evidence has clearly established a consistent association of visible injury with O
Further, the Administrator takes note of the range of evidence on visible foliar injury and the various related analyses, including additional observations drawn from the WREA biosite dataset in response to comments, as summarized in section IV.C.2 above. In so doing, she does not agree with CASAC's comment that a level of W126 exposure below 10 ppm-hrs is required to reduce foliar injury, noting some lack of clarity in the WREA and PA presentations of the WREA cumulative proportion analysis findings and their meaning (described in section IV.C.2.b above). She notes that the additional observations summarized in section IV.C.2 above indicate declines in proportions of sites with any visible foliar injury and biosite index scores with reductions in cumulative W126 exposure across a range of values extending at the high end well above 20 ppm-hrs, down past and including 17 ppm-hrs. In considering this information, however, the Administrator takes note of the current lack of robust exposure-response functions that would allow prediction of visible foliar injury severity and incidence under varying air quality and environmental conditions, as recognized in section IV.A.1.b above. Thus, while the Administrator notes that the evidence is not conducive to use for identification of a specific quantitative public welfare protection objective, due to uncertainties and complexities described in sections IV.A.1.b and IV.A.3 above, she concludes that her judgments above, reached with a focus on RBL estimates, would also be expected to provide an additional
With the public welfare protection objectives identified above in mind, the Administrator turns to her consideration of form and level for the revised secondary standard. In considering whether the current form should be retained or revised in order to provide the appropriate degree of public welfare protection, the Administrator has considered the analyses of air quality data from the last 13 years that describe the cumulative exposures, in terms of a 3-year W126 index, occurring at monitoring sites across the U.S. when the air quality metric at that location, in terms of the current standard's form and averaging time, is at or below different alternative levels. The Administrator notes both the conclusions drawn from analyses of the strong, positive relationship between these metrics and the findings that indicate the amount of control provided by the fourth-high metric.
The Administrator has also considered advice from CASAC and public commenters that support revision of the form to the W126 exposure index. The Administrator concurs with the underlying premise that O
With regard to recommendations from the CASAC that the form for the revised secondary standard should be the biologically relevant exposure metric, and related comments from the public indicating that the secondary standard must have such a form, the Administrator disagrees. In so doing, she notes that CAA section 109 does not impose such a requirement on the form or averaging time for the NAAQS, as explained in IV.C.2 above. She further notes that the averaging time and form of primary standards are often not the same as the exposure metrics used in reviews of primary standards, in which specific information on quantitative relationships between different exposure metrics and health risk is more often available than it is in reviews of secondary NAAQS. As discussed in section IV.C.2 above, with examples, a primary standard with a particular averaging time and form may provide the requisite public health protection from health effects that are most appropriately assessed using an exposure metric of a different averaging time and form and indicator, and the same principle can apply when establishing or revising secondary standards. The Administrator recognizes that the exposure metric and the standard metric can be quite similar, as in the case of consideration of short-term health effects with the primary O
Based on the considerations described here, including the use of an exposure metric that CASAC has agreed to be biologically relevant and appropriate, related considerations summarized in the proposal with regard to air quality analyses and common uses of exposure metrics in other NAAQS reviews, the Administrator finds that, in combination with a revised level, the current form and averaging time for a revised secondary standard can be expected to provide the desired level of public welfare protection. Accordingly, she next turns to the important consideration of a level that, in combination with the form and averaging time, will yield a standard that specifies the requisite air quality for protection of public welfare. In so doing, she has recognized the recommendation by CASAC for revision of the form and averaging time and provided the basis for her alternative view, as described above. Further, in the context of the Administrator's decision on objectives for public welfare protection of a revised secondary standard, and with consideration of the advice from CASAC on levels for a W126-based standard, the Administrator has also reached the conclusion, as described above, that in order to provide the appropriate degree of public welfare protection, the revised secondary standard should restrict cumulative seasonal exposures to 17 ppm-hrs or lower, in terms of a 3-year average W126 index, in nearly all instances. Thus, the Administrator finds it appropriate to revise the standard level to one that, in combination with the form and averaging time, will exert this desired degree of control for cumulative seasonal exposures.
In considering a revised standard level, the Administrator has, in light of public comments, revisited the information she considered in reaching her proposed decision on a level within the range of 65 to 70 ppb, and additional information or insights conveyed with public comments. The primary focus of the Administrator's considerations in reaching her proposed decision was the multi-faceted analysis of air quality data from 2001 through 2013 documented in the technical memo in the docket (Wells, 2014a), as well as the earlier analyses and related information described in the PA (as summarized in section IV.E.4 of the proposal). This analysis describes the occurrences of 3-year W126 index values of a magnitude from 17 ppm-hrs through 7 ppm-hrs at monitor locations where O
The Administrator notes that some public commenters, who disagreed with her proposed decision on form and averaging time, emphasized past occurrences of cumulative W126 exposure values above the range identified in the proposal (of 13 to 17 ppm-hrs). For example, these commenters emphasize data from farther back across the full time period of the dataset analyzed in the technical memorandum (2001-2013), identifying a value of 19.1 ppm-hrs at a monitor for which the fourth-high metric is 70 ppb for the 3-year period of 2006-2008. The Administrator notes, as discussed in section IV.C.2 above, that this was one of fewer than a handful of isolated occurrences of sites for which the fourth-high was at or below 70 ppb and the W126 index value was above 17 ppm-hrs, all but one of which were below 19 ppm-hrs. The Administrator additionally recognizes her underlying objective of a revised secondary standard that would limit cumulative exposures in nearly all instances to those for which the median RBL estimate would be somewhat lower than 6%. She observes that the single occurrence of 19 ppm-hrs identified by the commenter among the nearly 4000 3-year W126 index values from across the most recently available 11 3-year periods of data at monitors for which the fourth-high metric is at or below 70 ppb is reasonably regarded as an extremely rare and isolated occurrence (Wells, 2015b). As such, it is unclear whether it would recur, particularly as areas take further steps to reduce O
The Administrator recognizes that any standard intended to exert a very high degree of control on cumulative seasonal exposures, with the objective of limiting exposures above 17 ppm-hrs across the U.S., in nearly all instances, will, due to regional variation in meteorology and sources of O
The Administrator has also considered the protection afforded by a revised standard against other effects studied in this review, such as visible foliar injury and reduced yield for agricultural crops, and also including those associated with climate change. While noting the evidence supporting a relationship of O
The Administrator additionally considers the extent of control for cumulative seasonal exposures exerted by a revised standard level of 65 ppb, the lower end of the proposed range. In focusing on the air quality analyses for the most recent 3-year period for which data are available, the Administrator observes that across the sites meeting a fourth-high metric of 65 ppb, the analysis finds no occurrences of W126 metric values above 11 ppm-hrs and 35 occurrences of a value between 7 ppm-hrs and 11 ppm-hrs, scattered across NOAA climatic regions. The Administrator finds these magnitudes of cumulative seasonal exposures to extend appreciably below the objectives she identified above for affording public welfare protection. In considering this alternative level, she additionally notes that data for only 276 monitors (less than 25 percent of the total with valid fourth-high and W126 metric values) were at or below a fourth-high value of 65 ppb during the period from 2011-2013. In so noting, she recognizes the appreciably smaller and less geographically extensive dataset available and the associated uncertainty for conclusions based on such an analysis.
Thus, based on the support provided by currently available information on air quality, the evidence base of O
For the reasons discussed above, and taking into account information and assessments presented in the ISA and PA, the advice and recommendations of CASAC, and the public comments, as well as public welfare judgments, the Administrator is revising the level of the current secondary standard. Specifically, the Administrator has decided to revise the level of the secondary standard to a level of 0.070 ppm, in conjunction with retaining the current indicator, averaging time and form. Accordingly the revised secondary standard is 0.070 ppm O
The EPA is finalizing the proposed Appendix U to 40 CFR part 50: Interpretation of the Primary and Secondary National Ambient Air Quality Standards for Ozone. The proposed Appendix U addressed the selection of ambient O
The EPA is also finalizing, as proposed, exceptional events scheduling provisions in 40 CFR 50.14 that will apply to the submission of information supporting claimed exceptional events affecting pollutant data that are intended to be used in the initial area designations for any new or revised NAAQS. The new scheduling provisions will apply to initial area designations for the 2015 O
The EPA proposed this section in Appendix U to clarify which data are to be used in comparisons with the revised O
First, the EPA proposed to combine data at monitoring sites with two or more O
A few commenters supported the EPA's proposed approach with the additional restrictions that the monitoring instruments must use identical methods and be operated by the same monitoring agency. The EPA notes that at the time of this rulemaking, all monitors reporting O
One state objected to combining data across monitors because the secondary monitors at their sites were used only for quality assurance purposes and data from these monitors should not be combined with data reported from the primary monitors. The EPA notes that concentration data collected to meet quality assurance requirements (
Another commenter objected to the proposal because it would reduce the total number of comparisons made with the NAAQS. While this is true, the number of physical locations being compared with the NAAQS will not decrease under the proposed approach, and in fact may increase due to additional sites meeting the data completeness requirements.
Finally, two commenters submitted similar comments citing the EPA's evaluation of collocated O
The EPA is finalizing this addition in Appendix U as proposed. In addition, the AQS database will be updated to require state agencies to designate a primary monitor at O
Second, the EPA proposed to add a provision in Appendix U that would allow the Regional Administrator to approve “site combinations”, or to combine data across two nearby monitors for the purpose of calculating a valid design value. Although data handling appendices for previous O
Public commenters unanimously supported this proposed addition. Two commenters suggested that the EPA should require monitoring agencies to provide technical documentation supporting the similarities between sites approved for combining data, including a requirement for simultaneous monitoring whenever possible. One state requested that the EPA provide more detailed acceptability criteria for approving site combinations, while another state urged the EPA not to create a regulatory burden by prescribing detailed requirements codified in regulations.
The EPA is finalizing this addition as proposed in Appendix U. The EPA believes that approval of site combinations should be handled on a case-by-case basis, and that any requests for supporting documentation should be left to the discretion of the Regional Administrator. The EPA may issue future guidance providing general criteria for determining an acceptable level of similarity in air quality concentrations between monitored locations, but is not prescribing detailed criteria for approval of site combinations in this rulemaking.
Additionally, the AQS database will be updated with new fields for monitoring agencies to request site combinations, and an additional field indicating Regional Administrator approval. All pre-existing site combinations will be initially entered into the database as having already been approved by the Regional Administrator. Since this provision has already been used in practice under previous O
First, the EPA proposed a change in Appendix U to the pre-existing 8-hour average data substitution test (40 CFR part 50, Appendix P, section 2.1) which is used to determine if a site would have had a valid 8-hour average greater than the NAAQS when fewer than 6 hourly O
Several commenters supported the proposed change, stating that the use of a constant substitution value instead of
The EPA is finalizing the proposed change in Appendix U, with the addition of a short clause making note of the equivalent summation approach described above. The purpose of the data substitution test is to identify 8-hour periods that do not meet the requirements for a valid 8-hour average, yet the reported hourly concentration values are so high that the NAAQS would have been exceeded regardless of the magnitude of the missing concentration values. The EPA believes that zero, being the lowest measured O
Second, the EPA proposed a new procedure in Appendix U for determining daily maximum 8-hour O
One regional air quality management organization and three of its member states submitted similar comments stating that they agreed with the principle of eliminating “double counting” exceedances of the NAAQS
Three states submitted comments stating that they agreed with the proposed calculation procedure, but disagreed with the proposed requirements for determining a valid daily maximum 8-hour O
Finally, two public commenters opposed the proposed procedures for determining daily maximum 8-hour concentrations. These commenters expressed similar concerns, primarily that not considering 8-hour periods starting midnight to 6:00 a.m. is less protective of public health than the procedure used to determine daily maximum 8-hour concentrations for the previous O
The EPA is finalizing as proposed in Appendix U the procedure for determining daily maximum 8-hour concentrations. The EPA does not believe that daily maximum 8-hour concentrations for two consecutive days should be based on overlapping 8-hour periods, since the exposures experienced by individuals only occur once. The EPA believes that the new procedure will avoid this outcome while continuing to make use of all hourly concentrations in determining attainment of the standards, without introducing unnecessary complexity into design value calculations, and without creating additional difficulties for monitoring agencies to meet the data completeness requirements.
The “Treatment of Data Influenced by Exceptional Events; Final Rule” (72 FR 13560, March 22, 2007), known as the Exceptional Events Rule and codified at 40 CFR 50.14, contains generic deadlines for an air agency to submit to the EPA specified information about exceptional events and associated air pollutant concentration data. As discussed in this section and in more detail in the O
The EPA is finalizing exceptional events scheduling provisions in 40 CFR 50.14, as proposed and as supported by multiple commenters, that will apply to the submission of information supporting claimed exceptional events affecting pollutant data that are intended to be used in the initial area designations for any new or revised NAAQS. The new scheduling provisions will apply to initial area designations for the revised O
The EPA acknowledges the concern raised by several commenters that a strengthened O
Under the schedule promulgated in this action and assuming initial area designation decisions in October 2017 for the revised O
While, for the third year of data anticipated to be used in a 3-year design value for the revised O
Applying the “delta schedule” promulgated in this action for air quality data collected in 2013 through 2014 that could be influenced by exceptional events and be considered during the initial area designations process for the revised O
While the EPA will make every effort to designate areas for any new or revised NAAQS on a 2-year schedule, the EPA recognizes that under some circumstances we may need up to an additional year for the designations process to ensure that air agencies and the EPA base designations decisions on complete and sufficient information. The promulgated schedule accounts for the possibility that the EPA might announce after promulgating a new or revised NAAQS that we are extending the designations schedule beyond 2 years using authority provided in CAA section 107(d)(B)(i). If the EPA determines that we will follow a 3-year designation schedule, the deadline is 2 years and 7 months after promulgation of a new or revised NAAQS for states to flag data influenced by exceptional events, submit initial event descriptions and submit exceptional events demonstrations for the last year of data that will be used in the designations (
Therefore, using the authority provided in CAA section 319(b)(2) and in the 2007 Exceptional Events Rule at 40 CFR 50.14(c)(2)(vi), the EPA is modifying the schedule for flagging data and submitting exceptional events demonstrations considered for initial area designations by replacing the deadlines and information in Table 1 in 40 CFR 50.14 with the deadlines and information presented in Table 5. As we did in the O
Additionally, in conjunction with promulgating exceptional events schedules for initial area designations for new or revised NAAQS, the EPA, as proposed, is removing obsolete regulatory language in 40 CFR 50.14(c)(2)(iv) and (v) and 40 CFR 50.14(c)(3)(ii) and (iii) associated with exceptional events schedules for all historical standards.
The EPA proposed to revise the state-by-state O
The EPA is finalizing changes to the length of the required O
The EPA is finalizing changes to the PAMS monitoring requirements in 40 CFR part 58, Appendix D Section 5. Section VI.C of this preamble provides background on the PAMS program and current monitoring requirements, a summary of the proposed changes to the PAMS requirements, a summary of significant public comments and our responses, and a summary of the changes to the PAMS requirements in this final rule.
The EPA is finalizing changes to the FRM for O
Unlike the ambient monitoring requirements in 40 CFR part 58 for other criteria pollutants that mandate year-round monitoring at State and Local Air Monitoring Stations (SLAMS), O
The EPA has determined that the proposed lengthening of the O
The EPA completed an analysis to address whether extensions of currently required monitoring seasons are appropriate (Rice, 2014). In this analysis, we used all available data in AQS, including data from monitors that collected O
Basing O
The EPA proposed to extend the length of the required O
The EPA also proposed that O
We noted that the EPA Regional Administrators have previously approved deviations from the required O
Given the timing of the final rulemaking and any associated burden on state/local monitoring agencies to implement the extended O
We received several comments on the proposed revisions to O
Although no changes were proposed for Arkansas, the Arkansas Department of Environmental Quality recommended that the O
Two commenters noted the need to extend seasons to capture wintertime O
The commenters who opposed lengthening the O
Certain logistical complexities were noted if longer seasons were required, including site access during winter and the challenge of getting the monitoring equipment ready in time. Four states noted concerns with operator safety and anticipated their inability to access sites due to early spring snowfall. The EPA agrees that site access could be an issue depending on weather conditions and notes that specific site monitoring season deviations may be appropriate. We suggest that this be addressed through the monitoring season waiver process with the EPA Regional Administrator. Any deviations based on the Regional Administrator's waiver of requirements must be described in the state's annual monitoring network plan and updated in AQS.
Several commenters had concerns about the additional cost and resources needed to expand the O
Two commenters had concerns about the 4-year period of time evaluated in the EPA's analysis and noted that the 4-year period of time evaluated does not take into account meteorological anomalies and other weather induced situations and is not consistent with the 3 years used to calculate design values. One state agency's comments referenced their own analysis showing concentrations going back 20 years. They noted that 2010 was an unusual year and inclusion of such an unusual year in the 4-year period (2010-2013) of the EPA's analysis provides too much weight on those data. As noted earlier, year-to-year variability occurs in seasonal O
Two commenters noted that “regional consistency” is not a scientific reason and is not needed for making changes to the O
Some commenters expressed support for the proposed requirement that NCore O
The EPA Regional Administrators have previously approved deviations from the required O
We received three comments for and three comments against early implementation of the revised O
Final changes to the required O
Detailed state-by-state technical information has been placed in the docket to document the basis for the EPA's decision on each state. This information includes state-by-state maps and number of days that were ≥ 0.060 ppm; distribution charts of the number of days that were ≥ 0.060 ppm by month and state; and detailed information regarding AQS site IDs, dates and concentrations of all occurrences of the 8-hour daily maximum of at least 0.060 ppm between 2010 and 2013. Summaries have also been prepared for each state including the former and proposed O
No changes to the required O
Changes to the required O
Colorado: Proposed addition of January, February, October, November, and December is finalized. The required season is revised to January-December.
Connecticut: Proposed addition of March is finalized, revising season to March-September.
Delaware: Proposed addition of March is finalized, revising season to March-October.
District of Columbia: Proposed addition of March is finalized, revising season to March-October.
Florida: Proposed addition of January, February, November, and December is finalized. The required season is revised to January-December.
Idaho: Proposed addition of April is finalized, revising season to April-September.
Illinois: Proposed addition of March is finalized, revising season to March-October.
Indiana: Proposed addition of March and October, revising season to March-October.
Iowa: Proposed addition of March is finalized, revising season to March-October.
Kansas: Proposed addition of March is finalized, revising season to March-October.
Maryland: Proposed addition of March is finalized, revising season to March-October.
Massachusetts: Proposed addition of March is finalized, revising season to March-September.
Michigan: Proposed addition of March and October is finalized, revising season to March-October.
Minnesota: Proposed addition of March is finalized, revising season to March-October.
Missouri: Proposed addition of March is finalized, revising season to March-October.
Montana: Proposed addition of April and May is finalized, revising season to April-September.
Nebraska: Proposed addition of March is finalized, revising season to March-October.
New Hampshire: Proposed addition of March is finalized, revising season to March-September.
New Jersey: Proposed addition of March is finalized, revising season to March-October.
New York: Proposed addition of March is finalized, revising season to March-October.
North Carolina: Proposed addition of March is finalized, revising season to March-October.
North Dakota: Proposed addition of March and April is finalized, revising season to March-September.
Ohio: Proposed addition of March is finalized, revising season to March-October.
Pennsylvania: Proposed addition of March is finalized, revising season to March-October.
Rhode Island: Proposed addition of March is finalized, revising season to March-September.
South Carolina: Proposed addition of March is finalized, revising season to March-October.
South Dakota: Proposed addition of March, April, May, and October is finalized, revising season to March-October.
Texas (Northern AQCR 022, 210, 211, 212, 215, 217, 218): Proposed addition of November is finalized, revising season to March-November.
Utah: Proposed addition of January, February, March, April, October,
Virginia: Proposed addition of March is finalized, revising season to March-October.
West Virginia: Proposed addition of March is finalized, revising season to March—October.
Wisconsin: Proposed addition of March and April 1—15 is finalized, revising season to March—October 15.
Wyoming: Proposed addition of January, February, March, and removal of October is finalized, revising season to January—September.
Finally, we are finalizing the required O
Section 182 (c)(1) of the CAA required the EPA to promulgate rules for enhanced monitoring of O
In response to the CAA requirements and the recommendations of the NAS report, on February 12, 1993 (58 FR 8452), the EPA revised the ambient air quality surveillance regulations to require PAMS in each O
The original requirements called for two to five fixed sites per PAMS area depending on the area's population. Four types of PAMS sites were identified including upwind (Type 1), maximum precursor emission rate (Type 2), maximum O
In the October 17, 2006 monitoring rule (71 FR 61236), the EPA revised the PAMS requirements to only require two sites per PAMS area. The intent of the revision was to “allow PAMS monitoring to be more customized to local data needs rather than meeting so many specific requirements common to all subject O
Twenty-two areas were classified as serious or above O
The first PAMS sites began operation in 1994, and have been in operation for over 20 years. Since the start of the program, there have been many changes to the nature and scope of the O
In 2011, the EPA initiated an effort to re-evaluate the PAMS requirements in light of changes in the needs of PAMS data users and the improvements in monitoring technology. The EPA consulted with the Clean Air Science Advisory Committee (CASAC), Air
Based on the findings of the PAMS evaluation and the consultations with the CASAC AMMS and NACAA MSC, the EPA proposed to revise several aspects of the PAMS monitoring requirements including changes in (1) network design, (2) VOC sampling, (3) carbonyl sampling, (4) nitrogen oxides sampling, and (5) meteorology measurements. The following paragraphs summarize the proposed changes, the comments received, and the final changes and supporting rationale.
As discussed above, the current PAMS network design calls for two sites (a Type 2, and a Type 1 or Type 3) per PAMS area. In their report (U.S EPA, 2011f), the CASAC AMMS found “that the existing uniform national network design model for PAMS is outdated and too resource intensive,” and recommended “that greater flexibility for network design and implementation of the PAMS program be transferred to state and local monitoring agencies to allow monitoring, research, and data analysis to be better tailored to the specific needs of each O
The EPA agrees with CASAC that the PAMS objectives include both local and national objectives, and believes that the current PAMS network design is no longer suited for meeting either sets of objectives. As part of the PAMS evaluation, it was determined that at the national level the primary use of the PAMS data has been to evaluate photochemical model performance. Due to the locations of the current PAMS areas and the current network design, existing PAMS sites are clustered along the northeast and west coasts leading to significant redundancy in these areas and very limited coverage throughout the remainder of the country (Cavender, 2014). The resulting uneven spatial coverage greatly limits the value of the PAMS data for evaluation of model performance. CASAC (U.S. EPA, 2011f) noted the spatial coverage issue and advised that the EPA should consider requiring PAMS measurements in areas in addition to “areas classified as serious and above for the O
The EPA proposed changes to the network design requirements to better serve both national and local objectives. The EPA proposed a two part network design. The first part of the design included a network of fixed sites (“required PAMS sites”) intended to support O
To implement the fixed site portion of the network design, the EPA proposed to require PAMS measurements at any existing NCore site in an O
The EPA recognized that in limited situations existing NCore sites may not be the most appropriate locations for making PAMS measurements. For example, an existing PAMS site in an O
Most commenters agreed with the need to revise the existing network design. One commenter agreed that “requiring PAMS monitoring at already existing NCore locations will benefit national and local objectives to understand ozone formation and would also provide significant cost efficiencies.” Another commenter stated that they supported the proposed changes, “especially the flexibility provided by EMPs designed to meet local objectives and achieve a better understanding of photochemical precursors.” Another commenter supporting the changes stated that the “proposed network revision will provide states the flexibility to use their resources effectively.” One commenter stated that the proposed changes “reflect a more efficient use of state and local monitoring resources by availing
A number of concerns were also raised with the proposed network design. Several commenters stated that the proposal “would drastically reduce the PAMS network in the Northeast.” One commenter stated that “this is not acceptable for the Northeast and Mid-atlantic Corridor, which requires monitoring of the complex transport from multiple large metropolitan areas in the region.” One commenter recognized that the EPA had intended to allow states to use EMPs to address upwind and downwind data needs, but raised concerns that states with historically important upwind and downwind sites in the Ozone Transport Region
Concerns were raised by some states that existing NCore sites may not be the most appropriate location for making PAMS measurements. One commenter noted that their NCore site was inland but that their “most significant ozone problems occur along the shoreline due to transport along the lake”, and that “the NCore site cannot provide insight into these important lakeshore ozone processes.” Another commenter stated that “while it was laudable to leverage sites where data is already being collected, it is unclear whether NCore sites adequately meet the objectives of the PAMS program”, and that “the current NCore network may not be adequate to depict boundary conditions or areas of maximum emissions.” One commenter stated that “in some nonattainment areas an NCore site may be an appropriate location for a PAMS monitor, but in other areas it would be preferable to install the PAMS monitoring in a location downwind of a source region where higher ozone exposures occur” and that “State and local boundaries should not be part of the network design criteria.” One commenter noted that while the EPA had proposed to allow waivers, it was unclear if waivers would be allowed where the alternative site was in a different CBSA or state than the required PAMS site. As stated in our proposal, the EPA recognizes that in some cases existing PAMS sites (or other sites) may be better suited to meet local and national data needs. For this reason, we had proposed to allow waivers in these situations. We do agree that it is appropriate in some cases to allow these waivers to cross CBSA and state boundaries. Therefore, we have added specific language to the final waiver provisions to clarify that waivers can be allowed to cross CBSA and state boundaries. Where a monitoring agency receives a waiver from siting a monitor in reliance on a monitor operated by a different monitoring agency (
In addition to the concerns raised about closing important existing PAMS sites discussed above, some commenters raised concerns that many of the newly required PAMS sites would be in locations that were expected to attain the revised O
The EPA noted in the proposal that the size and locations of the proposed required PAMS network is sensitive to the level of the revised O
We requested comments on additional options to define the fixed PAMS network component of the new network design. These options were further discussed in a memorandum to the docket (Cavender, 2014). One option discussed was to require PAMS measurements at all NCore sites irrespective of the O
Another option discussed in the proposal included requiring PAMS measurements at NCore sites in O
Upon further consideration and in response to the comments received, we are finalizing a network design that includes a requirement for states to make PAMS measurements at all NCore sites in CBSAs with a population of 1,000,000 people or more, irrespective of O
Because the network requirement is not tied to attainment status, this final requirement will ensure network stability and allows for more efficient use of available resources. This final requirement also removes uncertainty as to applicability and aids planning and logistics involved with implementing the new requirements. Monitoring agencies can determine the applicability of the fixed site requirements to their areas today, and begin to make plans for investments in equipment, shelter improvements, and staffing and training needs necessary to implement the fixed site requirements without having to wait for the designations process to be completed. In addition, this final requirement should alleviate concerns raised by monitoring agencies in more rural locations over the ability to attract and retain staff with the skills necessary to make PAMS measurements.
By adding the PAMS measurements to existing NCore sites, significant efficiencies can be obtained which should further reduce the costs of the fixed site network as NCore sites currently make many of the PAMS measurements. Furthermore, adding the additional PAMS measurements (
Although, as discussed in comment and summarized above, we believe there are good reasons for not tying the requirement for fixed PAMS sites to O
The second part of the proposed PAMS network design included monitoring agency directed enhanced O
We received comments on the proposed requirement for an EMP in states with O
Commenters expressed concerns over the lack of detail on what an approvable EMP would entail. As proposed, the
Measurement of speciated VOCs important to O
The EPA believes that the current options provided for VOC measurement limit the comparative value of the data being collected, and proposed that required PAMS sites must measure and report hourly speciated VOCs, which effectively would require them to use an autoGC to measure VOCs in lieu of canisters. More complete and consistent speciated VOC data nationally would better help meet certain objectives of the PAMS program described above (
At the time the original PAMS requirements were promulgated, the canister options were included because the EPA recognized that the technologies necessary to measure hourly average speciated VOCs concentrations were relatively new and may not have been suitable for broad network use. At that time, GCs designed for laboratory use were equipped with auto-samplers designed to “trap” the VOC compounds from a gas sample, and then “purge” the compounds onto the GC column. The EPA did not believe that autoGCs were universally appropriate due to the technical skill and effort necessary at that time to properly operate an autoGC.
While the basic principles of autoGC technology have not changed, the hardware and software of modern autoGCs are greatly improved over that available at the time of the original PAMS requirements. Based on advice from the CASAC AMMS, the EPA initiated an evaluation of current autoGCs potentially suitable for use in the PAMS network. Based on the preliminary results, the EPA believes that typical site operators, with appropriate training, will have the skill necessary to operate a modern autoGC successfully. Considering the advances in autoGC technology, the added value obtained from hourly data, and the proposed move of PAMS measurements to NCore sites in O
While the EPA believes that the proposed transition to hourly speciated VOC sampling is the appropriate strategy to take advantage of improved technology and to broaden the utility of collected data, we are also mindful of the additional rigidity that the proposed mandatory use of autoGCs may have for monitoring agencies, especially those that have experience with and have established effective and reliable canister sampling programs. Therefore, the EPA requested comment on the proposed requirement for hourly VOC sampling as well as the range of alternatives that might be appropriate in lieu of a strict requirement.
The EPA received a number of comments on the requirement to measure hourly VOCs at required PAMS sites. Many commenters agreed with requiring hourly VOC data. One commenter agreed that “hourly VOC data collection is the most appropriate and useful for PAMS monitors” and that “it is only appropriate to approve an alternative data collection interval if it is believed that the high ozone in an area is due to other pollutants, such as NO
However, some commenters raised concerns with the hourly VOC requirement. Some commenters questioned if autoGCs would be capable of measuring important VOC species in their environment. One commenter noted that in their location (high desert) “the largest VOC present in our inventory is creosote, a compound not commonly measured with this instrumentation.” One commenter stated that the “Southeastern United States is dominated by biogenic VOC emissions” and questioned “the benefits of an autoGC in understanding ozone formation in any potential nonattainment area in our State.”
As noted in the preamble, and the comments received, the EPA is currently completing an evaluation of
For the reasons discussed above and in the proposed rule, the EPA is finalizing a requirement for hourly speciated VOC measurements at required PAMS sites. The EPA believes that hourly VOC measurements will provide a more complete and consistent speciated VOC database to help meet the PAMS program objectives described above. Hourly VOC data are particularly useful in evaluating air quality models and performing diagnostic emission attribution studies. Longer time-averaged data are of lower value for model evaluation. Consistent monitoring requirements across the network will provide better data for analyzing regional trends and spatial patterns.
However, the EPA agrees that there may be locations where an autoGC may not be the most appropriate method for VOC measurement and that it is appropriate to allow for canister sampling in limited situations. Accordingly, the EPA is adding a waiver option (to be approved by the EPA Regional Administrator) to allow three 8-hour average samples every 3rd day as an alternative in cases where VOCs are not well measured by autoGC due to low concentrations of target compounds or where the predominant VOC compounds cannot be measured using autoGC technology (
Carbonyls include a number of compounds important to O
In 2006, the EPA revised the PAMS requirements such that carbonyl sampling was only required in areas classified as serious or above nonattainment for O
A recent evaluation of the importance of VOCs and carbonyls to O
Several commenters agreed with the need for carbonyl data at PAMS sites. However, a number of commenters questioned the proposed frequency of eight 3-hour samples every day during the PAMS sampling season (June through August). Several commenters indicated that the frequency was too high. One commenter noted that the requirement would require 800 samples per season at each PAMS site and pointed out that this requirement, which was required at the inception of the PAMS program in the 1990s was “found to be prohibitively expensive, technically unsustainable, and qualitatively compromised.” Another commenter stated that “this level of sampling would require a substantial amount of agency resources and seems unduly burdensome.” A number of commenters also questioned the commercial availability of an 8-channel carbonyl sampler that would be needed to take eight 3-hour samples daily. In light of the comments and upon further review, the EPA agrees that the proposed frequency is unduly burdensome and is finalizing a requirement with a lower frequency.
A number of alternative frequencies were suggested in the comments. Several commenters suggested a frequency of three 8-hour samples on either a 1-in-6 day or 1-in-3 day basis. Another commenter suggested a frequency of eight 3-hour samples on a 1 in 6 day basis. The EPA notes that sampling on a 1-in-6 day frequency would lead to as little as 15 sampling days per PAMS sampling season. The EPA believes that 15 sampling days is too few to provide a meaningful representation of carbonyl concentrations over the PAMS sampling period. A sampling frequency of 1-in-3 days would lead to 30 sampling days per season with each day of the week being represented at least 4 times per sampling season. With regards to samples per day, a 3-hour sampling duration provides a better diurnal representation of carbonyl sampling compared with an 8-hour sampling duration; however 8-hour sampling can provide information useful for evaluating diurnal differences in carbonyl concentrations. Upon further consideration and in light of the comments received, the EPA is finalizing a carbonyl sampling requirement with a frequency of three 8-hour samples on a 1-in-3 day basis. This final requirement will result in approximately 90 samples per PAMS sampling season which the EPA believes is not unduly burdensome and
A number of commenters noted the ongoing development of continuous formaldehyde instruments, and recommended that EPA allow for continuous formaldehyde measurements as an alternative to the manual cartridge based TO-11A method. The EPA agrees that continuous formaldehyde, with the ability to obtain hourly averaged measurements, would be a significantly more valuable that the longer averaged measurements. As a result, the EPA has added an option to allow for continuous formaldehyde as an alternative to the carbonyl measurements using TO-11A.
It is well known that NO and NO
In conventional NO
Improvements in reactive nitrogen measurements have been made since the original PAMS requirements were promulgated that allow for improved NO
As discussed above, the EPA is finalizing a PAMS network design such that PAMS measurements will be required at existing NCore sites in CBSAs with a population of 1,000,000 people or more. NCore sites currently are required to measure NO and NO
A number of commenters questioned the need for both NO
The comments suggest that the model's ability to simulate the partitioning of reactive nitrogen is unimportant because there may be other errors in the model. The EPA believes that measurements should be routinely collected so that it can be demonstrated that the chemistry, meteorology, and emissions in the model are all of sufficient reliability for use in informing air quality management decisions. Monitoring sites rarely fall into simple categories of urban or rural, and the speciation of NO
Measurements of NO, NO
The current PAMS requirements require monitoring agencies to collect surface meteorology at all required PAMS sites. As noted in the EPA's Technical Assistance Document (U.S. EPA, 1998) for the PAMS program, the PAMS requirements do not provide specific surface meteorological parameters to be monitored. As part of the implementation efforts for the original PAMS program, a list of recommended parameters was developed and incorporated into the TAD which includes wind direction, wind speed, temperature, humidity, atmospheric pressure, precipitation, solar radiation, and ultraviolet (UV) radiation. Currently, NCore sites are required to measure the above parameters with the exceptions of atmospheric pressure, precipitation, solar radiation, and UV radiation. In recognition of the importance of these additional measurements for understanding O
The existing PAMS requirements also require the collection of upper air meteorological measurements at one site in each PAMS area. The term upper air meteorological is not well defined in the existing PAMS requirements. As part of the implementation efforts for the original PAMS program, mixing height was added to the PAMS TAD as a recommended meteorological parameter to be monitored. Most monitoring agencies installed radar profilers to meet the requirement to collect upper air meteorology. Radar profilers provide data on wind direction and speed at multiple heights in the atmosphere. Radio acoustic sounding system (RASS) profilers are often included with radar profilers to obtain atmospheric temperature at multiple heights in the atmosphere and to estimate mixing height. The EPA recognizes that the upper air data on wind speed and wind direction from radar profilers can be very useful in O
As discussed above, mixing height is one upper air meteorological measurement that has historically been measured at PAMS sites. A number of methods can be used to measure mixing height in addition to radar profiler technology discussed above. Recent developments in ceilometer technology allow for the measurement of mixing height by changes in particulate concentrations at the top of the boundary layer (Eresmaa et al., 2006). Ceilometers provide the potential for continuous mixing height data at a fraction of the cost of radar profilers. Due to the importance of mixing height measurements for O
A number of commenters questioned the need for mixing height measurements at PAMS sites. One commenter stated, “the photochemical modeling community has a long history of relying upon National Weather Service measurements for mixing height.” Another commenter stated that “in some areas of the country the models used to predict mixing height are adequate, but in other mountainous or marine areas model-predicted mixing height data is inadequate.” Accurate estimates of mixing height are important for appropriately characterizing concentrations of O
Several commenters noted that nearby National Oceanic and Atmospheric Administration (NOAA) Automated Surface Observing System (ASOS) sites may be a better alternative for collection of mixing height data. As indicated in the proposal, the EPA is aware of the network of ceilometers operated by NOAA as part of ASOS. The EPA has been in discussions with NOAA regarding the potential for these systems to provide the needed mixing height data. However, the ASOS ceilometers are not currently equipped to provide mixing height data and NOAA has no current plans to measure continuous mixing height in the future. Nonetheless, the EPA will continue to work with NOAA to determine if the ASOS ceilometers can be upgraded to meet the need for mixing height data, and included proposed regulatory language that will allow states a waiver to use nearby mixing height data from ASOS (or other sources) to meet the requirement to collect mixing height data at required PAMS sites when such data are suitable and available.
The EPA is finalizing the requirement for the measurement of mixing height at required PAMS sites due to the importance of mixing height in O
Currently, PAMS measurements are required to be taken during the months of June, July, and August. This 3-month period is referred to as the “PAMS Season.” As part of the PAMS re-evaluation, the EPA considered changes to the PAMS season. The 3-month PAMS season was originally selected to represent the most active period for O
The CASAC AMMS (U.S. EPA, 2011f) noted in their report to the EPA that “it would be desirable to extend the PAMS monitoring season beyond the current June, July, August sampling period.” But that “the monitoring season should not be mandated and rigid; it should be flexible and adopted and coordinated on a regional airshed basis.” The EPA agrees with CASAC on the need for flexibility in determining when PAMS measurements should be taken to meet local monitoring needs but also agrees with CASAC that the flexibility “should not conflict with national goals for the PAMS program.” A significant benefit of the standard PAMS season is that it ensures data availability from all PAMS sites for national- or regional-scale modeling efforts.
While the EPA agrees with the potential benefit of extending the availability of PAMS measurements outside of the current season, we also considered the burden of requiring monitoring agencies to operate additional PAMS measurements (
The EPA believes that the 3-month PAMS season will provide a consistent data set of O
The EPA recognizes that the changes to the PAMS requirements will require resources and a reasonable timeline in order to be successfully implemented. The PAMS program is funded, in part, as part of the EPA's section 105 grants. The EPA believes that the current national funding level of the PAMS program is sufficient to support these final changes, but changes in the distribution of PAMS funds will need to be made. The network design changes will require some monitoring agencies to start collection of new PAMS measurements, while other monitoring agencies will see reductions in PAMS measurement requirements. The EPA will work with the NAACA, AAPCA, and other monitoring agencies to develop an appropriate PAMS grant distribution strategy.
In addition to resources, the affected monitoring agencies will need time to implement the revised PAMS requirements. For the required PAMS sites, monitoring agencies can determine now which NCore sites will be required to make PAMS measurements based on readily available census data. However, monitoring agencies will still need time to evaluate and seek approval for alternative sites or alternative VOC methods. In addition, monitoring agencies will need time to make capital investments (primarily for the installation of autoGCs, NO
Monitoring agencies will need to wait until O
The use of FRM analyzers for the collection of air monitoring data provides uniform, reproducible measurements of concentrations of criteria pollutants in ambient air. FRMs for various pollutants are described in several appendixes to 40 CFR part 50. For most gaseous criteria pollutants (including O
The EPA allows new or alternative monitoring technologies—identified as FEMs—to be used in lieu of FRMs, provided that such alternative methods produce measurements closely comparable to corresponding FRM measurements. Part 53 sets forth the specific performance requirements as well as the performance test procedures required by the EPA for determining and designating both FRM and FEM analyzers by brand and model.
To be used in a determination of compliance with the O
The existing O
Although the existing O
A revised Appendix D to 40 CFR part 50 was proposed to include both the original ET-CL methodology as well as the new NO-CL methodology, such that use of either measurement technique would be acceptable for implementation in commercial FRM analyzers. Currently, two O
The proposed FRM in part 50, Appendix D also included numerous editorial changes to provide clarification of some provisions, some revised wording, additional details, and a more refined numbering system and format consistent with that of two other recently revised FRMs (for SO
As noted in the proposal, there is substantial similarity between the new and previously existing FRM measurement techniques, and comparative field data show excellent agreement between ambient O
The proposed FRM retains the original ET-CL methodology, so all existing FEMs, which were designated under part 53 based on demonstrated comparability to that ET-CL methodology, will retain their FEM designations. Thus, there will be no negative consequences or disruption to monitoring agencies, which will not be required to make any changes to their O
Comments that were received from the public on the proposed new O
The proposed FRM mentioned the need for a sample air dryer for both ET-CL and NO-CL FRM analyzers. In response to these comments, the wording of the ET-CL FRM has been augmented to clarify the requirement for a dryer in all newly designated FRMs (the only change being made by the EPA to the existing ET-CL FRM as proposed). Also, the interference equivalent limit for water vapor in part 53 was proposed to be substantially reduced from the current 0.02 ppm to 0.002 ppm. The interference equivalent test for water vapor applicable to the new NO-CL candidate FRM analyzers (specified in Table B-3 of part 53) was proposed to be more stringent than the corresponding existing test for ET-CL FRM analyzers by requiring that water vapor be mixed with O
Several comments indicated concern that currently-designated FEM analyzers retain their designation without retesting if the new FRM were promulgated. The current ET-CL FRM is being retained; therefore, it is not necessary to make these new requirements retroactive to existing designated FEM analyzers. The existing FEM analyzers will not be required to be retested, and their FEM designation will be retained so that there will be no disruption to current monitoring networks.
Although beyond the scope of this rulemaking, other comments concerned potential hazards of the NO compressed gas supply required for NO-CL analyzer operation, and the current non-availability of a photolytic converter to provide an alternative source of NO from a less hazardous nitrous oxide gas supply. With regard to the photolytic converter, the EPA would approve such a converter as a source of NO if requested by an FRM analyzer manufacturer, upon demonstration of adequate functionality.
A few commenters liked the “scrubberless UV absorption” (SL-UV) measurement technique. The EPA has identified the SL-UV method as a potentially advantageous candidate for the O
One comment suggested that the value for the absorption cross section of O
In close association with the proposed O
Modest changes proposed for Table B-3 would add new interferent test concentrations specifically for NO-CL O
Several changes to Table B-1 were proposed. Updated performance requirements for “standard range” analyzers were proposed to be more consistent with current O
The form of the precision limits at both 20% and 80% of the URL was proposed to be changed from ppm to percent. The proposed new limits (in percent) were set to be equivalent to the previously existing limits (in ppm) and thus remain effectively unchanged. This change in form of the precision limits in Table B-1 has been previously made for SO
Concurrent with the proposed changes to the performance requirements for candidate O
Finally, the EPA proposed new, optional, “lower range” performance limits for O
Two minor changes were proposed to the general, administrative provisions in Subpart A of part 53. These include an increase in the time allowed for the EPA to process requests for approval of modifications to previously designated FRMs and FEMs in 53.14 and the withdrawal of a requirement for annual submission of Product Manufacturing Checklists associated with FRMs and FEMs for PM
Several comments were received related to the proposed changes to the analyzer performance requirements of part 53, and most were supportive. Comments from a few monitoring agencies suggested that the more stringent performance requirements proposed might be difficult to achieve or would increase monitor maintenance and cost. The EPA is also clarifying that these requirements apply only to the performance qualification requirements for designations of new FRM and FEM analyzers and will have no impact on a monitoring agency's operation of existing O
More specific comments from an analyzer manufacturer pointed out that the proposed lower limits for noise and LDL may be too stringent, the former because low-cost portable analyzers may have shorter absorption cells, and the latter because of limitations of current calibration technology. After further consideration of available analyzer performance data in light of these comments, the EPA agrees and is changing the noise limits from the proposed values of 1 ppb and 0.5 ppb (for the standard and lower ranges, respectively) to 2.5 ppb and 1 ppb (respectively). The EPA is also changing the LDL limit from the proposed values of 3 ppb and 1 ppb (respectively) to 5 ppb and 2 ppb (respectively). These new limits are still considerably more stringent than the previous limits (for the standard range) and are also consistent with those recommended by the commenter and the current performance capabilities of existing analyzer/calibration technology.
This commenter also pointed out that the proposed lower limit for 12-hour zero drift, together with the way the prescribed test is carried out, resulted in the test being dominated by analyzer noise rather than drift. The EPA agrees with this comment in general but believes that further study is needed before any specific changes can be proposed for the 12-hour zero drift test, particularly since any such changes would affect analyzers for other gaseous pollutants, as well.
Other comments suggested that there was no need for the proposed new, low-range performance requirements, because of cost and that available calibrators would be inadequate for calibration of such low ranges. The EPA disagrees with these comments and believes, as noted in the proposal preamble, that there is a definite need for low-level O
Several comments pointed out some typographical errors related to footnotes in Table B-3, as proposed; these errors have been corrected in the version of Table B-3 being finalized today.
EPA is finalizing the proposed amendments to both the O
This section addresses the grandfathering provision for certain Prevention of Significant Deterioration (PSD) permit applications that is being finalized in this rule. Section VIII.C of this preamble contains a description of the PSD and Nonattainment New Source Review (NNSR) permitting programs and additional discussion of the implementation of those programs for the O
The EPA proposed to amend the PSD regulations to add a transition plan that would address the extent to which the revised O
In the proposal, we also noted that for sources subject to the federal PSD program under 40 CFR 52.21, the EPA and air agencies that have been delegated authority to implement the federal PSD program for the EPA would apply the grandfathering provision to any PSD application that satisfies either of the two criteria that make an application eligible for grandfathering. Accordingly, if a particular application does not qualify under the first criterion based on a complete application determination, it may qualify under the second criterion based on a public notice announcing the draft permit or preliminary determination. Conversely, a source may qualify for grandfathering under the first criterion, even if it does not satisfy the second.
The EPA also proposed revisions to the PSD regulations at 40 CFR 51.166 that would afford air agencies that issue PSD permits under a SIP-approved PSD permit program the discretion to adopt provisions into the SIP that allow for grandfathering of pending PSD permits under the same circumstances as set forth in the federal PSD regulations. With regard to implementing the grandfathering provision, we also explained that air agencies with EPA-approved PSD programs in their SIPs would have additional flexibility for implementing the proposed grandfathering provision to the extent that any alternative approach is at least as stringent as the federal provision. In addition, the proposal recognized that some air agencies do not make formal completeness determinations; thus, only the latter criterion based on the issuance of a public notice would be relevant in such cases and the state could elect to adopt only that criterion into its SIP. Accordingly, the EPA proposed to add a grandfathering provision to 40 CFR 51.166 containing the same two criteria as proposed for 40 CFR 52.21.
Many of the comments supported the concept of grandfathering. Some of these comments, mostly by state and local air agencies, supported the grandfathering provision as proposed. Many others recommended alternative approaches to grandfathering based on several different dates. Several comments recommended that air agencies be allowed to grandfather certain PSD permit applications and issue a PSD permit based on the 2008 O
Comments that recommended broadening the scope of the proposed grandfathering provision suggested a variety of approaches. Some air agency and industry comments recommended that the EPA adopt a grandfathering provision applicable only to those PSD applications for which the reviewing authority has determined the application to be complete on or before the signature date of the revised NAAQS. Other air agency and industry comments recommended that grandfathered status be determined only on the basis of whether the relevant permitting milestone has been achieved by the effective date of the revised NAAQS.
The EPA disagrees with these comments; the final rule uses separate dates for the two grandfathering milestones, as proposed. If the effective date of the revised NAAQS were used as the date for the complete application milestone, this could lead to pressure on state permitting authorities to prematurely issue completeness determinations in order to qualify for the grandfathering provision in the time period between signature of this final rule and the effective date. Using the signature date of the revised O
Several other comments recommended that the grandfathering provision apply to all PSD applications for which a final PSD permit will be issued prior to the effective date of the area designations for the revised NAAQS. Some of these comments explained that without some transition provisions in the final rule, it may be impossible for a source to demonstrate attainment if the current ambient air monitoring data indicates a revised, lowered standard is not being met. The comments also suggested that the extended period for grandfathering a source from the revised NAAQS would provide states with additional time to establish offset banks or similar systems for new nonattainment areas.
Other comments recommended that air agencies be allowed to grandfather either all or certain PSD permit applications received before the effective date of the final nonattainment designations for the revised O
The EPA does not agree with the comments recommending that the EPA use a date after the effective date of the revised O
The EPA does not agree with the comments suggesting that the grandfathering provision should be expanded to apply to any PSD application received before the effective date of the final nonattainment designations for the revised O
With respect to the comments that suggested the effective date of the NAAQS should be used as the date for both milestones, the EPA does not agree that such a change is necessary. The purpose of the grandfathering provision is to provide a reasonable transition mechanism in the following circumstances: first, the PSD application is one for which both the applicant and the reviewing authority have committed substantial resources; and, second, this situation is one where the need to satisfy the demonstration requirement under CAA section 165(a)(3) could impact the reviewing authority's ability to meet the statutory deadline for issuing a permit within one year of the completeness determination. In situations where the reviewing authority has not yet issued a completeness determination as of the signature date of the revised O
With respect to the comments that suggested adopting a grandfathering provision applicable only to those PSD applications for which the reviewing authority has determined the application to be complete on or before the signature date of the revised NAAQS, the EPA is not making this change because we understand that not all reviewing authorities issue formal completeness determinations. Including
An opposing set of comments—submitted by a consortium of eight environmental groups and one health advocacy group—challenged the proposed grandfathering provision on the basis that the EPA did not have the legal authority to grandfather sources from PSD requirements. These commenters argued that the plain language of CAA section 165 forecloses the EPA's proposed approach and raised several other legal considerations. The EPA disagrees with these comments, including the interpretations of the CAA that they offer. As summarized in the rationale for the final action below in section VII.C of this preamble, the EPA believes that the CAA provides it authority and discretion to establish a PSD grandfathering provision such as the one being adopted today through a rulemaking process. The EPA is providing a further, detailed analysis fully responding to this set of comments, as well as other comments related to the grandfathering provision, in the Response to Comment Document in the docket for this rule.
After consideration and evaluation of all the public comments received on the grandfathering provision, the EPA is finalizing this provision as proposed, with minor revisions that enhance the clarity of the grandfathering provision, without changing its substantive effect. While these revisions lead to slight differences in wording for the grandfathering provision for the 2012 PM
Under 40 CFR 52.21, a permit application may qualify for grandfathering under either of the two sets of milestones and dates contained in the provision. Where the EPA is the reviewing authority, the EPA intends to apply the grandfathering provision to PSD applicants pursuant to PSD regulations at 40 CFR 52.21 primarily through the use of the completeness determination milestone because the EPA Regional Offices make a formal completeness determination for any PSD application that they receive and review. The EPA is including the second criterion in 40 CFR 52.21 so that pending applications can still qualify for grandfathering under the second criterion if any air agency that incorporates 40 CFR 52.21 into a SIP-approved program does not make formal completeness determinations as part of its permit review process.
The EPA is also amending the PSD regulations at 40 CFR 51.166 to enable states and other air agencies that issue PSD permits under SIP-approved PSD programs to adopt a comparable grandfathering provision. Nevertheless, such air agencies have discretion to not grandfather PSD applications or to apply grandfathering under their approved PSD programs in another manner as long as that program is at least as stringent as the provision being added to 40 CFR 51.166. Accordingly, an air agency may elect to rely on both sets of milestones and dates or it may grandfather on the sole basis of only one set. However, the EPA anticipates that once a decision is made concerning the use of either set of milestones and dates, the air agency will apply grandfathering consistently to all pending PSD permit applications.
As explained in more detail in the proposal, absent a regulatory grandfathering provision, the EPA interprets section 165(a)(3)(B) of the CAA and the implementing PSD regulations at 40 CFR 52.21(k)(1) and 51.166(k)(1) to require that PSD permit applications include a demonstration that emissions from the proposed facility will not cause or contribute to a violation of any NAAQS that is in effect as of the date the PSD permit is issued. However, reading CAA section 165(a)(3)(B) in context with other provisions of the Act and the legislative history, the EPA interprets the Act to provide the EPA with authority to establish grandfathering provisions through regulation. The EPA has explained its interpretation of its authority to promulgate grandfathering provisions in previous rulemaking actions, most recently in the rule establishing the grandfathering provision for the 2012 PM
To summarize briefly, the addition of this grandfathering provision is permissible under the discretion provided by the CAA for the EPA to craft a reasonable implementation regulation that balances competing objectives of the statutory PSD program found in CAA section 165. Specifically, section 165(a)(3) requires a permit applicant to demonstrate that its proposed project will not cause or contribute to a violation of any NAAQS, while section 165(c) requires that a PSD permit be granted or denied within one year after the permitting authority determines the application for such permit to be complete. Section 109(d)(1) of the CAA requires the EPA to review existing NAAQS and make appropriate revisions every five years. When these provisions are considered together, a statutory ambiguity arises concerning how the requirements under CAA section 165(a)(3)(B) should be applied to a limited set of pending PSD permit applications when the O
In addressing these gaps in the CAA and the tension that may arise in section 165 in these circumstances, the EPA also applies CAA section 301, where the Administrator is authorized “to prescribe such regulations as are necessary to carry out his functions under this chapter.” Sections 165(a)(3) and 165(c) of the CAA make clear that the interests behind CAA section 165 include both protection of air quality and timely decision-making on pending permit applications. The legislative history illustrates congressional intent to avoid delays in permit processing. S. Rep. No. 94-717, at 26 (1976) (“nothing could be more detrimental to the intent of this section and the integrity of this Act than to have the process encumbered by bureaucratic delay”). Thus, when read in combination, these provisions of the CAA provide the EPA with the discretion to issue regulations to grandfather pending permit applications from having to address a revised NAAQS where necessary to achieve both CAA objectives—to protect the NAAQS and to avoid delays in processing PSD permit applications. Accordingly, the EPA is seeking in this action to balance the requirements in the CAA to make a decision on a permit application within one year and to ensure that new and modified sources will only be authorized to construct after showing they can meet the substantive permitting criteria that apply to them. The EPA is achieving this balance by determining through rulemaking which O
This approach is consistent with a recent opinion by the U.S. Court of Appeals for the Ninth Circuit, which recognized the EPA's traditional exercise of grandfathering authority through rulemaking. The court observed that this approach was consistent with the statutory requirement to “enforce whatever regulations are in effect at the time the agency makes a final decision” because it involved identifying “an operative date, incident to setting the new substantive standard, and the grandfathering of pending permit applications was explicitly built into the new regulations.”
This adoption of a grandfathering provision in this action is also consistent with previous actions in which the EPA has recognized that the CAA provides discretion for the EPA to establish grandfathering provisions for PSD permit applications through regulations. Some examples of previous references to the EPA's authority to grandfather certain applications through rulemaking include 45 FR 52683, August 7, 1980; 52 FR 24672, July 1, 1987; and most recently 78 FR 3086, January 15, 2013.
This grandfathering provision does not apply to any applicable PSD requirements related to O
This section provides background information for understanding the implications of the revised O
In the preamble for the O
As directed by the CAA, reducing pollution to meet national air quality standards always has been a shared task, one involving the federal government, states, tribes and local air quality management agencies. The EPA develops regulations and strategies to reduce pollution on a broad scale, while states and tribes are responsible for implementation planning and any additional emission reduction measures necessary to bring specific areas into attainment. The agency supports implementation planning with technical resources, guidance, and program rules where necessary, while air quality management agencies use their knowledge of local needs and opportunities in designing emission reduction strategies that will work best for their industries and communities.
This partnership has proved effective since the EPA first issued O
The revisions to the primary and secondary O
The EPA has regulations in place addressing the general requirements for SIPs, and there are also provisions in these existing rules that cover O
The EPA has considered the extent to which existing EPA regulations and guidance are sufficient to implement the revised standards. The CAA does not require that the EPA promulgate new implementing regulations or issue new guidance for states every time that a NAAQS is revised. Likewise, the CAA does not require the issuance of additional implementing regulations or guidance by the EPA before a revised NAAQS becomes effective. It is important to note that the existing EPA regulations in 40 CFR part 51 applicable to SIPs generally and to particular pollutants, including O
The EPA has received comments from a variety of states and organizations asking for rules and guidance associated with a revised NAAQS to be issued in a timely manner. As explained above, and consistent with the proposal, the EPA is not responding to these comments at this time because they are not related to any changes to existing regulations that EPA proposed in this rule. Moreover, although issuance of such rules and guidance is not a part of the NAAQS review process,
Certain requirements under the PSD preconstruction permit review program apply immediately to a revised NAAQS upon the effective date of that NAAQS, unless the EPA has established a grandfathering provision through rulemaking. To ensure a smooth transition to a revised O
Promulgation or revision of the NAAQS starts a clock for the EPA to designate areas as either attainment or nonattainment. State recommendations for area designations are due to the EPA within 12 months of promulgating or revising the NAAQS. In an effort to allow states to make more informed recommendations for these particular standards, the EPA intends to issue additional guidance concerning the designations process for these standards within four months of promulgation of the NAAQS, or approximately eight months before state recommendations are due. The EPA generally completes
Under CAA section 110, a NAAQS revision triggers the review and, as necessary, revision of SIPs to be submitted within three years of promulgation of a revised NAAQS. These SIPs are referred to as “infrastructure SIPs.” The EPA issued general guidance on submitting infrastructure SIPs on September 13, 2013.
While much of the existing rules and guidance for prior ozone standards remains applicable to the new standards, the EPA intends to propose to adopt revised rules on some subjects to facilitate air agencies' efforts to implement the revised O
The EPA and state, local and tribal air agencies, strive to determine how to most effectively and efficiently use the CAA's various provisions to provide required public health and welfare protection from the harmful effects of O
The term “background” O
While the great majority of modeled O
Statutory and regulatory relief associated with U.S. background O
• Relief from designation as a nonattainment area through exclusion of data affected by exceptional events;
• Relief from the more stringent requirements of higher nonattainment area classifications through treatment as a rural transport area, through exclusion of data affected by exceptional events, or through international transport provisions;
• Relief from having to demonstrate attainment and having to adopt more than reasonable controls on local sources through international transport provisions.
Further discussion of these mechanisms is provided in sections VIII.B.2 (exceptional events), VIII.B.1 (rural transport areas), and VIII.E.2 (international transport).
Although these relief mechanisms require some level of assessment or demonstration by a state and/or the EPA to invoke, they have been used successfully in the past under appropriate circumstances. For example, the EPA has historically acted on every exceptional events demonstration that has affected a regulatory decision regarding initial area designations.
The CAA section 110 specifies the general requirements for SIPs. Within three years after the promulgation of revised NAAQS (or such shorter period as the Administrator may prescribe
It is the responsibility of each state to review its air quality management program's compliance with the infrastructure SIP provisions in light of each new or revised NAAQS. Most states have revised and updated their infrastructure SIPs in recent years to address requirements associated with the 2008 O
Part D of the CAA describes the various program requirements that apply to states with nonattainment areas for different NAAQS. Clean Air Act Section 182 (found in subpart 2 of part D) includes the specific SIP requirements that govern the O
The EPA believes that the overall framework and policy approach of the implementation rules associated with the 2008 O
We know that developing the implementation plans that outline the steps a nonattainment area will take to
After the EPA establishes or revises a NAAQS, the CAA directs the EPA and the states to take steps to ensure that the new or revised NAAQS is met. One of the first steps, known as the initial area designations, involves identifying areas of the country that either meet or do not meet the new or revised NAAQS, along with any nearby areas that contribute to areas that do not meet the new or revised NAAQS.
Section 107(d)(1) of the CAA provides that, “By such date as the Administrator may reasonably require, but not later than 1 year after promulgation of a new or revised national ambient air quality standard for any pollutant under section 109, the Governor of each state shall . . . submit to the Administrator a list of all areas (or portions thereof) in the state” that designates those areas as nonattainment, attainment, or unclassifiable. The EPA must then promulgate the area designations according to a specified process, including procedures to be followed if the EPA intends to modify a state's initial recommendation.
Clean Air Act Section 107(d)(1)(B)(i) further provides, “Upon promulgation or revision of a national ambient air quality standard, the Administrator shall promulgate the designations of all areas (or portions thereof) . . . as expeditiously as practicable, but in no case later than 2 years from the date of promulgation of the new or revised national ambient air quality standard. Such period may be extended for up to one year in the event the Administrator has insufficient information to promulgate the designations.” By no later than 120 days prior to promulgating area designations, the EPA is required to notify states of any intended modifications to their recommendations that the EPA may deem necessary. States then have an opportunity to demonstrate why any proposed modification is inappropriate. Whether or not a state provides a recommendation, the EPA must timely promulgate the designation that the agency deems appropriate.
While section 107 of the CAA specifically addresses states, the EPA intends to follow the same process for tribes to the extent practicable, pursuant to CAA section 301(d) regarding tribal authority and the Tribal Authority Rule (63 FR 7254, February 12, 1998). To provide clarity and consistency in doing so, the EPA issued a 2011 guidance memorandum on working with tribes during the designation process.
As discussed in sections II and IV of this preamble, the EPA is revising both the primary and secondary O
The CAA defines an area as nonattainment if it is violating the NAAQS or if it is contributing to a violation in a nearby area. Consistent with previous area designations processes, the EPA intends to use area-specific analysis of multiple factors to support area boundary decisions. The EPA intends to evaluate information related to the following factors for designations: air quality data, emissions and emissions-related data, meteorology, geography/topography, and jurisdictional boundaries. Additional guidance on the designation process and how these factors may be evaluated and inform the process will be issued by the EPA early in 2016 to assist states in developing their recommendations.
Areas that are designated as nonattainment are also classified at the time of designation by operation of law according to the severity of their O
Clean Air Act section 182(h) authorizes the EPA Administrator to determine that an area designated nonattainment can be treated as a rural transport area. Regardless of its classification, a rural transport area is deemed to have fulfilled all O
• The area does not contain emissions sources that make a significant contribution to monitored O
• The area does not include and is not adjacent to a Metropolitan Statistical Area.
Historically, the EPA has listed four nonattainment areas as rural transport areas under this statutory provision.
During the initial area designations process, the EPA intends to evaluate multiple factors, including air quality data, when identifying and determining boundaries for areas of the country that meet or do not meet the revised O
• the event “affects air quality;”
• the event “is not reasonably controllable or preventable;”
• the event is “caused by human activity that is unlikely to recur at a particular location or [is] a natural event,”
• that “a clear causal relationship must exist between the measured exceedances of a [NAAQS] and the exceptional event. . . .”
The EPA's implementing regulations, the Exceptional Events Rule, further specify certain requirements for air agencies making exceptional events demonstrations.
The ISA contains discussions of natural events that may contribute to O
Strong stratospheric O
While stratospheric O
In response to previously expressed stakeholder feedback regarding implementation of the Exceptional Events Rule and specific stakeholder concerns regarding the burden of exceptional events demonstrations, the EPA is currently engaged in a rulemaking process to amend the Exceptional Events Rule. As part of an upcoming notice and comment rulemaking effort (and related activities, including the issuance of relevant guidance documents), the EPA sees opportunities to standardize best practices for collaboration between the EPA and air agencies, clarify and simplify demonstrations, and improve tools and consistency.
Additionally, the EPA intends to develop guidance to address implementing the Exceptional Events Rule criteria for wildfires that could affect ambient O
The EPA is committed to working with federal land managers, other federal agencies, tribes and states to effectively manage prescribed fire use to reduce the impact of wildfire-related emissions on O
The CAA, at parts C and D of title I, contains preconstruction review and permitting programs applicable to new major stationary sources and major modifications of existing major sources. The preconstruction review of each new major stationary source and major modification applies on a pollutant-specific basis, and the requirements that apply for each pollutant depend on whether the area in which the source is situated is designated as attainment (or
Until an area is formally designated with respect to the revised O
The EPA's major NSR regulations define the term “regulated NSR pollutant” to include any pollutant for which a NAAQS has been promulgated and any pollutant identified in EPA regulations as a constituent or precursor to such pollutant.
The statutory requirements for a PSD permit program set forth under part C of title I of the CAA (sections 160 through 169) are addressed by the EPA's PSD regulations found at 40 CFR 51.166 (minimum requirements for an approvable PSD SIP) and 40 CFR 52.21 (PSD permitting program for permits issued under the EPA's federal permitting authority). Both sets of regulations already apply for O
For PSD, a “major stationary source” is one that emits or has the potential to emit 250 tons per year (tpy) or more of any regulated NSR pollutant, unless the new or modified source is classified under a list of 28 source categories contained in the statutory definition of “major emitting facility” in section 169(1) of the CAA. For those 28 source categories, a “major stationary source” is one that emits or has the potential to emit 100 tpy or more of any regulated NSR pollutant. A “major modification” is a physical change or a change in the method of operation of an existing major stationary source that results first, in a significant emissions increase of a regulated NSR pollutant for the project, and second, in a significant net emissions increase of that pollutant at the source.
Among other things, for each regulated NSR pollutant emitted or increased in significant amounts, the PSD program requires a new major stationary source or a major modification to apply Best Available Control Technology and to conduct an air quality impact analysis to demonstrate that the proposed source or project will not cause or contribute to a violation of any NAAQS or PSD increment (
Because the complex chemistry of O
In this rulemaking, the EPA is amending the PSD regulations at 40 CFR 51.166 and 40 CFR 52.21 to include a grandfathering provision that will allow reviewing authorities to continue to review certain pending PSD permit applications in accordance with the O
The EPA has historically allowed the use of screening and compliance demonstration tools to help facilitate the implementation of the NSR program by reducing the source's burden and streamlining the permitting process for circumstances where the emissions or ambient impacts of a particular pollutant could be considered
In the context of the PSD air quality impact analysis, the EPA has also used a value called a significant impact level (SIL) as a compliance demonstration tool. The SIL, expressed as an ambient concentration of a pollutant, may be used first to determine the geographical scope of the ambient impact analysis that must be completed for the applicable pollutant to satisfy the air quality demonstration requirement under CAA section 165(a)(3). A second use is to guide the determination of whether the impact of the source is considered to cause or contribute to a violation of any NAAQS. The EPA has not established a SIL for O
Several commenters addressed statements that the EPA made concerning screening tools for O
The EPA anticipates that the existing O
Part D of title I of the CAA includes preconstruction review and permitting requirements for new major stationary sources and major modifications when they locate in areas designated nonattainment for a particular pollutant. The relevant part D requirements are typically referred to as the nonattainment NSR (NNSR) program. The EPA regulations for the NNSR program are contained at 40 CFR 51.165, 52.24 and part 51 Appendix S. The EPA's minimum requirements for a NNSR program to be approvable into a SIP are contained in 40 CFR 51.165. Appendix S to 40 CFR part 51 contains an interim NNSR program. This interim program enables implementation of NNSR permitting in nonattainment areas that lack a SIP-approved NNSR permitting program for the particular nonattainment pollutant, and the interim program can be applied during the time between the date of the relevant nonattainment designation and the date on which the EPA approves into the SIP a NNSR program or additional components of an NNSR program for a particular pollutant.
The EPA is not modifying any existing NNSR requirements in this rulemaking. Under the CAA, area designations for new or revised NAAQS are addressed subsequent to the effective date of the new or revised NAAQS. If the EPA determines that any revisions to the existing NNSR requirements, including those in Appendix S, are appropriate, the EPA expects, at a later date contemporaneous with the designation process for the revised O
For NNSR, new major stationary sources and major modifications for O
To facilitate continued economic development in nonattainment areas, many states have established offset banks or registries.
Conformity is required under CAA section 176(c) to ensure that federal actions are consistent with (“conform to”) the purpose of the SIP. Conformity to the purpose of the SIP means that federal activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the relevant NAAQS or interim reductions and milestones. Conformity applies to areas that are designated nonattainment, and those nonattainment areas redesignated to attainment with a CAA section 175A maintenance plan after 1990 (“maintenance areas”).
The EPA's Transportation Conformity Rule (40 CFR 51.390 and part 93, subpart A) establishes the criteria and procedures for determining whether transportation activities conform to the SIP. These activities include adopting, funding or approving transportation plans, transportation improvement programs (TIPs) and federally supported highway and transit projects. For further information on conformity rulemakings, policy guidance and outreach materials,
With regard to general conformity, the EPA first promulgated general conformity regulations in November 1993. (40 CFR part 51, subpart W, 40 CFR part 93, subpart B) Subsequently the EPA finalized revisions to the general conformity regulations on April 5, 2010. (75 FR 17254-17279). Besides ensuring that federal actions not covered by the transportation conformity rule will not interfere with the SIP, the general conformity program also fosters communications between federal agencies and state/local air quality agencies, provides for public notification of and access to federal agency conformity determinations, and allows for air quality review of
Transportation and general conformity apply one year after the effective date of nonattainment designations for the revised O
In this final rule, the EPA is revising the O
Because significant tracts of land under federal management may be included in nonattainment area boundaries, the EPA encourages state and local air quality agencies to work with federal agencies to assess and develop emissions budgets that consider emissions from projects subject to general conformity, including emissions from fire on wildland, in any baseline, modeling and SIP attainment inventory. Where appropriate, states, land managers, and landowners may also consider developing plans to ensure that fuel accumulations are addressed Information is available from DOI and USDA Forest Service on the ecological role of fire and on smoke management programs and basic smoke management practices.
If this is the first time that transportation conformity will apply in a state, such a state is required by the statute and EPA regulations to submit a SIP revision that addresses three specific transportation conformity requirements that address consultation procedures and written commitments to control or mitigation measures associated with conformity determinations for transportation plans, TIPs or projects. (40 CFR 51.390) Additional information and guidance can be found in the EPA's “Guidance for Developing Transportation Conformity State Implementation Plans” (
The CAA contains provisions that specifically address and require regulation of the interstate transport of air pollution that does not otherwise qualify for data exclusion under the Act's exceptional events provisions. As previously noted, emissions from events, such as wildfires, may qualify as exceptional events and may be transported across jurisdictional boundaries. The EPA intends to address the transport of event-related emissions in our upcoming proposed revisions to the Exceptional Events Rule and draft guidance document addressing the Exceptional Events Rule criteria for wildfires that could affect O
The agency is active in work to reduce the international transport of O
Clean Air Act section 179B recognizes the possibility that certain nonattainment areas may be impacted by O
When the EPA approves this type of attainment plan and demonstration, and there would be no adverse consequence for a finding that the area failed to attain the NAAQS by the relevant attainment date. States can also avoid potential sanctions and FIPs that would otherwise apply for failure to submit a required SIP submission or failure to submit an approvable SIP submission. For example, section 179B explicitly provides that the area shall not be reclassified to the next highest classification or required to implement a section 185 penalty fee program if a state meets the applicable criteria.
Section 179B authority does not allow an area to avoid a nonattainment designation or for the area to be classified with a lower classification than is indicated by actual ambient air quality. Section 179B also does not provide for any relaxation of mandatory emissions control measures (including contingency measures) or the prescribed emissions reductions necessary to achieve periodic emissions reduction progress requirements. In this way, section 179B insures that states will take actions to mitigate the public health impacts of exposure to ambient levels of pollution that violate the NAAQS by imposing reasonable control measures on the sources that
The EPA has used section 179B authority previously to approve attainment plans for Mexican border areas in El Paso, TX (O
States are encouraged to consult with their EPA Regional Office to establish appropriate technical requirements for these analyses.
Additional information about these statutes and Executive Orders can be found at
This action is an economically significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket. The EPA prepared an analysis of the potential costs and benefits associated with this action. This analysis is contained in the document,
The information collection requirements in this final rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). The information collection requirements are not enforceable until OMB approves them. The Information Collection Request (ICR) document prepared by the EPA for these revisions has been assigned EPA ICR #2313.04.
The information collected and reported under 40 CFR part 58 is needed to determine compliance with the NAAQS, to characterize air quality and associated health and ecosystems impacts, to develop emission control strategies, and to measure progress for the air pollution program. We are extending the length of the required O
For the purposes of ICR number 2313.04, the burden figures represent the burden estimate based on the requirements contained in this rule. The burden estimates are for the 3-year period from 2016 through 2018. The implementation of the PAMS changes will occur beyond the time frame of this ICR with implementation occurring in 2019. The cost estimates for the PAMS network (including revisions) will be captured in future routine updates to the Ambient Air Quality Surveillance ICR that are required every 3 years by OMB. The addition of a new FRM in 40 CFR part 50 and revisions to the O
The ICR burden estimates are associated with the changes to the O
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. Rather, this rule establishes national standards for allowable concentrations of O
This action does not contain an unfunded federal mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The revisions to the O
Furthermore, as indicated previously, in setting NAAQS the EPA cannot consider the economic or technological feasibility of attaining ambient air quality standards, although such factors may be considered to a degree in the development of state plans to implement the standards (see
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. It does not have a substantial direct effect on one or more Indian tribes. This rule provides increased protection from adverse effects of ozone for the entire country, including for sensitive populations, and tribes are not obligated to adopt or implement any NAAQS. In addition, tribes are not obligated to conduct ambient monitoring for O
Nonetheless, consistent with the “EPA Policy on Consultation and Coordination with Indian Tribes”, the EPA offered government-to-government consultation on the proposed rule. No tribe requested government-to-government consultation with the EPA on this rule. In addition, the EPA conducted outreach to tribal environmental professionals, which included participation in the Tribal Air call sponsored by the National Tribal Air Association, and two other calls available to tribal environmental professionals. During the public comment period we received comments on the proposed rule from seven tribes and three tribal organizations.
This action is subject to Executive Order 13045 because it is an
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. The purpose of this rule is to establish revised NAAQS for O
This rulemaking involves environmental monitoring and measurement. Consistent with the Agency's Performance Based Measurement System (PBMS), the EPA is not requiring the use of specific, prescribed analytical methods. Rather, the Agency is allowing the use of any method that meets the prescribed performance criteria. Ambient air concentrations of O
The EPA believes that this action will not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations or indigenous peoples. The action described in this notice is to strengthen the NAAQS for O
The primary NAAQS are established at a level that is requisite to protect public health, including the health of sensitive or at-risk groups, with an adequate margin of safety. The NAAQS decisions are based on an explicit and comprehensive assessment of the current scientific evidence and associated exposure/risk analyses. More specifically, EPA expressly considers the available information regarding health effects among at-risk populations, including that available for low-income populations and minority populations, in decisions on NAAQS. Where low-income populations or minority populations are among the at-risk populations, the decision on the standard is based on providing protection for these and other at-risk populations and lifestages. Where such populations are not identified as at-risk populations, a NAAQS that is established to provide protection to the at-risk populations would also be expected to provide protection to all other populations, including low-income populations and minority populations.
The ISA, HREA, and PA for this review, which include identification of populations at risk from O
Although it is part of a separate docket (EPA-HQ-OAR-2013-0169) and is not part of the rulemaking record for this action, EPA has prepared a RIA of this decision. As part of the RIA, a demographic analysis was conducted. While, as noted in the RIA, the demographic analysis is not a full quantitative, site-specific exposure and risk assessment, that analysis examined demographic characteristics of persons living in areas with poor air quality relative to the proposed standard. Specifically, Chapter 9, section 9.10 (page 9-7) and Appendix 9A of the RIA describe this proximity and socio-demographic analysis. This analysis found that in areas with poor air quality relative to the revised standard,
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 a “major rule” as defined by 5 U.S.C. 804(2).
Environmental protection, Air pollution control, Carbon monoxide, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
Environmental protection, Administrative practices and
Environmental Protection, Administrative practices and procedures, Air pollution control, Incorporation by reference, Intergovernmental relations.
Environmental protection, Administrative practice and procedure, Air pollution control, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, chapter I of title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
The revisions read as follows:
(c) * * *
(2) * * *
(iii) Flags placed on data as being due to an exceptional event together with an initial description of the event shall be submitted to EPA not later than July 1st of the calendar year following the year in which the flagged measurement occurred, except as allowed under paragraph (c)(2)(vi) of this section.
(vi) Table 1 identifies the data submission process for a new or revised NAAQS. This process shall apply to those data that will or may influence the initial designation of areas for any new or revised NAAQS.
(3)
(a) The level of the national 8-hour primary ambient air quality standard for ozone (O
(b) The 8-hour primary O
(c) The level of the national secondary ambient air quality standard for O
(d) The 8-hour secondary O
1.0
1.1 This chemiluminescence method provides reference measurements of the concentration of ozone (O
2.0
2.1 This reference method is based on continuous automated measurement of the intensity of the characteristic chemiluminescence released by the gas phase reaction of O
2.2 The measurement system is calibrated by referencing the instrumental chemiluminescence measurements to certified O
2.3 An analyzer implementing this measurement principle is shown schematically in Figure 1. Designs implementing this measurement principle must include: an appropriately designed mixing and measurement cell; a suitable quantitative photometric measurement system with adequate sensitivity and wavelength specificity for O
2.4 An analyzer implementing this measurement principle and calibration procedure will be considered a federal reference method (FRM) only if it has been designated as a reference method in accordance with part 53 of this chapter.
2.5
3.0
3.1 Except as described in 3.2 below, the chemiluminescence measurement system is inherently free of significant interferences from other pollutant substances that may be present in ambient air.
3.2 A small sensitivity to variations in the humidity of the sample air is minimized by a sample air dryer. Potential loss of O
4.0
4.1
A stable O
The calculated O
4.2
4.3
4.3.1
4.3.2
4.3.3
4.3.4
4.3.5
4.3.6
4.3.7
4.4
4.4.1
4.5
4.5.1
4.5.2
4.5.2.1
4.5.2.2
4.5.2.3
The linearity error must be less than 5%. Since the accuracy of the measured flow-rates will affect the linearity error as measured this way, the test is not necessarily conclusive. Additional information on verifying linearity is contained in Reference 13.
4.5.2.4
4.5.2.5
4.5.3
4.5.3.1 Allow the photometer system to warm up and stabilize.
4.5.3.2 Verify that the flow rate through the photometer absorption cell, F, allows the cell to be flushed in a reasonably short period of time (2 liter/min is a typical flow). The precision of the measurements is inversely related to the time required for flushing, since the photometer drift error increases with time.
4.5.3.3 Ensure that the flow rate into the output manifold is at least 1 liter/min greater than the total flow rate required by the photometer and any other flow demand connected to the manifold.
4.5.3.4 Ensure that the flow rate of zero air, Fz, is at least 1 liter/min greater than the flow rate required by the photometer.
4.5.3.5 With zero air flowing in the output manifold, actuate the two-way valve to allow the photometer to sample first the manifold zero air, then Fz. The two photometer readings must be equal (I = I
In some commercially available photometers, the operation of the two-way valve and various other operations in section 4.5.3 may be carried out automatically by the photometer.
4.5.3.6 Adjust the O
4.5.3.7 Actuate the two-way valve to allow the photometer to sample zero air until the absorption cell is thoroughly flushed and record the stable measured value of Io.
4.5.3.8 Actuate the two-way valve to allow the photometer to sample the O
4.5.3.9 Record the temperature and pressure of the sample in the photometer absorption cell. (See Reference 13 for guidance.)
4.5.3.10 Calculate the O
Some commercial photometers may automatically evaluate all or part of equation 4. It is the operator's responsibility to verify that all of the information required for equation 4 is obtained, either automatically by the photometer or manually. For “automatic” photometers which evaluate the first term of equation 4 based on a linear approximation, a manual correction may be required, particularly at higher O
4.5.3.11 Obtain additional O
4.5.4
4.5.5
4.5.5.1 Allow sufficient time for the O
4.5.5.2 Allow the O
4.5.5.3 Generate an O
4.5.5.4 Adjust the O
4.5.5.5 Generate additional O
4.5.5.6 Plot the O
4.5.5.7
Additional information on calibration and pollutant standards is provided in Section 12 of Reference 14.
5.0
5.1 The frequency of calibration, as well as the number of points necessary to establish the calibration curve, and the frequency of other performance checking will vary by analyzer; however, the minimum frequency, acceptance criteria, and subsequent actions are specified in Appendix D of Reference 14: Measurement Quality Objectives and Validation Templates. The user's quality control program shall provide guidelines for initial establishment of these variables and for subsequent alteration as operational experience is accumulated. Manufacturers of analyzers should include in their instruction/operation manuals information and guidance as to these variables and on other matters of operation, calibration, routine maintenance, and quality control.
6.0
(a) This appendix explains the data handling conventions and computations necessary for determining whether the primary and secondary national ambient air quality standards (NAAQS) for ozone (O
(b) Whether to exclude or retain the data affected by exceptional events is determined by the requirements under §§ 50.1, 50.14 and 51.930.
(c) The terms used in this appendix are defined as follows:
O
(a) All valid hourly O
(b) All design value calculations shall be implemented on a site-level basis. If data are reported to EPA from collocated monitors, those data shall be combined into a single site data record as follows:
(i) The monitoring agency shall designate one monitor as the primary monitor for the site.
(ii) Hourly O
(c) In certain circumstances, including but not limited to site closures or relocations, data from two nearby sites may be combined into a single site data record for the purpose of calculating a valid design value. The appropriate Regional Administrator may approve such combinations after taking into consideration factors such as distance between sites, spatial and temporal patterns in air quality, local emissions and meteorology, jurisdictional boundaries, and terrain features.
(a) Hourly average O
(b) Moving 8-hour averages shall be computed from the hourly O
(c) The daily maximum 8-hour average O
(d) A daily maximum 8-hour average O
(e) The primary and secondary O
(a) The primary and secondary national ambient air quality standards for O
(b) A design value greater than the level of the NAAQS is always considered to be valid. A design value less than or equal to the level of the NAAQS must meet minimum data completeness requirements in order to be considered valid. These requirements are met for a 3-year period at a site if valid daily maximum 8-hour average O
(c) When computing whether the minimum data completeness requirements have been met, meteorological or ambient data may be sufficient to demonstrate that meteorological conditions on missing days were not conducive to concentrations above the level of the NAAQS. Missing days assumed less than the level of the NAAQS are counted for the purpose of meeting the minimum data completeness requirements, subject to the approval of the appropriate Regional Administrator.
(d) Comparisons with the primary and secondary O
As shown in Example 1, this site meets the primary and secondary O
As shown in Example 2, this site fails to meet the primary and secondary O
23 U.S.C. 101; 42 U.S.C. 7401-7671q.
(i) * * *
(11) The plan may provide that the requirements of paragraph (k)(1) of this section shall not apply to a permit application for a stationary source or modification with respect to the revised national ambient air quality standards for ozone published on October 26, 2015 if:
(i) The reviewing authority has determined the permit application subject to this section to be complete on or before October 1, 2015. Instead, the requirements in paragraph (k)(1) of this section shall apply with respect to the national ambient air quality standards for ozone in effect at the time the reviewing authority determined the permit application to be complete; or
(ii) The reviewing authority has first published before December 28, 2015 a public notice of a preliminary determination or draft permit for the permit application subject to this section. Instead, the requirements in paragraph (k)(1) of this section shall apply with respect to the national ambient air quality standards for ozone in effect at the time of first publication of a public notice of the preliminary determination or draft permit.
42 U.S.C. 7401
(i) * * *
(12) The requirements of paragraph (k)(1) of this section shall not apply to a permit application for a stationary source or modification with respect to the revised national ambient air quality standards for ozone published on October 26, 2015 if:
(i) The Administrator has determined the permit application subject to this section to be complete on or before October 1, 2015. Instead, the requirements in paragraph (k)(1) of this section shall apply with respect to the national ambient air quality standards for ozone in effect at the time the Administrator determined the permit application to be complete; or
(ii) The Administrator has first published before December 28, 2015 a public notice of a preliminary determination or draft permit for the permit application subject to this section. Instead, the requirements in paragraph (k)(1) of this section shall apply with respect to the national ambient air quality standards for ozone in effect on the date the Administrator first published a public notice of a preliminary determination or draft permit.
Sec. 301(a) of the Clean Air Act (42 U.S.C. 1857g(a)), as amended by sec. 15(c)(2) of Pub. L. 91-604, 84 Stat. 1713, unless otherwise noted.
(c) Within 90 calendar days after receiving a report under paragraph (a) of this section, the Administrator will take one or more of the following actions:
(e) * * *
(1) * * *
(vi)
(g) * * *
(1) * * *
(iii) The measurements shall be made in the sequence specified in table C-2 of this subpart.
42 U.S.C. 7403, 7405, 7410, 7414, 7601, 7611, 7614, and 7619.
(a) * * *
(9) The annual monitoring network plan shall provide for the required O
(10) A plan for making Photochemical Assessment Monitoring Stations (PAMS) measurements, if applicable, in accordance with the requirements of appendix D paragraph 5(a) of this part shall be submitted to the EPA Regional Administrator no later than July 1, 2018. The plan shall provide for the required PAMS measurements to begin by June 1, 2019.
(11) An Enhanced Monitoring Plan for O
(c) State and local governments must follow the network design criteria contained in appendix D to this part in designing and maintaining the SLAMS stations. The final network design and all changes in design are subject to approval of the Regional Administrator. NCore and STN network design and changes are also subject to approval of the Administrator. Changes in SPM stations do not require approvals, but a change in the designation of a monitoring site from SLAMS to SPM requires approval of the Regional Administrator.
(g) The O
(h) The Photochemical Assessment Monitoring sites required under 40 CFR part 58 Appendix D, section 5(a) must be physically established and operating under all of the requirements of this part, including the requirements of appendix A, C, D, and E of this part, no later than June 1, 2019.
(c) The population of a metropolitan statistical area for purposes of index reporting is the latest available U.S. census population.
4.1 * * *
(i) Ozone monitoring is required at SLAMS monitoring sites only during the seasons of the year that are conducive to O
(a) State and local monitoring agencies are required to collect and report PAMS measurements at each NCore site required under paragraph 3(a) of this appendix located in a CBSA with a population of 1,000,000 or more, based on the latest available census figures.
(b) PAMS measurements include:
(1) Hourly averaged speciated volatile organic compounds (VOCs);
(2) Three 8-hour averaged carbonyl samples per day on a 1 in 3 day schedule, or hourly averaged formaldehyde;
(3) Hourly averaged O
(4) Hourly averaged nitrogen oxide (NO), true nitrogen dioxide (NO
(5) Hourly averaged ambient temperature;
(6) Hourly vector-averaged wind direction;
(7) Hourly vector-averaged wind speed;
(8) Hourly average atmospheric pressure;
(9) Hourly averaged relative humidity;
(10) Hourly precipitation;
(11) Hourly averaged mixing-height;
(12) Hourly averaged solar radiation; and
(13) Hourly averaged ultraviolet radiation.
(c) The EPA Regional Administrator may grant a waiver to allow the collection of required PAMS measurements at an alternative location where the monitoring agency can demonstrate that the alternative location will provide representative data useful for regional or national scale modeling and the tracking of trends in O
(d) The EPA Regional Administrator may grant a waiver to allow speciated VOC measurements to be made as three 8-hour averages on every third day during the PAMS
(e) The EPA Regional Administrator may grant a waiver to allow representative meteorological data from nearby monitoring stations to be used to meet the meteorological requirements in paragraph 5(b) where the monitoring agency can demonstrate the data is collected in a manner consistent with EPA quality assurance requirements for these measurements.
(f) The EPA Regional Administrator may grant a waiver from the requirement to collect PAMS measurements in locations where CBSA-wide O
(g) At a minimum, the monitoring agency shall collect the required PAMS measurements during the months of June, July, and August.
(h) States with Moderate and above 8-hour O
(1) Additional O
(2) Additional NO
(3) Additional speciated VOC measurements including data gathered during different periods other than required under paragraph 5(g) of this appendix, or locations other than those required under paragraph 5(a) of this appendix, and
(4) Enhanced upper air measurements of meteorology or pollution concentrations.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is finalizing national emission standards for hazardous air pollutants (NESHAP) for Brick and Structural Clay Products (BSCP) Manufacturing and NESHAP for Clay Ceramics Manufacturing. All major sources in these categories must meet maximum achievable control technology (MACT) standards for mercury (Hg), non-mercury (non-Hg) metal hazardous air pollutants (HAP) (or particulate matter (PM) surrogate) and dioxins/furans (Clay Ceramics only); health-based standards for acid gas HAP; and work practice standards, where applicable. The final rule, which has been informed by input from industry (including small businesses), environmental groups, and other stakeholders, protects air quality and promotes public health by reducing emissions of HAP listed in section 112 of the Clean Air Act (CAA).
This action is effective on December 28, 2015. The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of December 28, 2015.
The EPA has established dockets for this rulemaking under Docket ID No. EPA-HQ-OAR-2013-0291 for BSCP Manufacturing and Docket ID No. EPA-HQ-OAR-2013-0290 for Clay Ceramics Manufacturing. All documents in the dockets are listed in the
For questions about the final rule for BSCP Manufacturing and Clay Ceramics Manufacturing, contact Ms. Sharon Nizich, Minerals and Manufacturing Group, Sector Policies and Program Division (D243-04), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; Telephone number: (919) 541-2825; Fax number: (919) 541-5450; Email address:
Section 112(d) of the CAA requires the EPA to set emissions standards for HAP emitted by sources in each source category and subcategory listed under section 112(c). We issued the NESHAP for BSCP Manufacturing and the NESHAP for Clay Ceramics Manufacturing on May 16, 2003. The two NESHAP were vacated and remanded by the United States Court of Appeals for the District of Columbia Circuit on March 13, 2007. To address the vacatur and remand of the original NESHAP, we are issuing standards for BSCP manufacturing facilities and clay ceramics manufacturing facilities located at major sources.
The EPA is finalizing MACT emission limits for non-Hg HAP metals (or PM surrogate) and Hg, and a health-based emission limit (HBEL) for acid gases (hydrogen fluoride (HF), hydrogen chloride (HCl) and chlorine (Cl
The EPA is finalizing MACT emission limits for Hg, PM (surrogate for non-Hg HAP metals), and dioxins/furans and HBEL for acid gases (HF and HCl) for sanitaryware tunnel kilns and ceramic tile roller kilns. In addition, the EPA is finalizing MACT emission limits for dioxins/furans for ceramic tile spray dryers and floor tile press dryers, MACT emission limits for Hg and PM (surrogate for non-Hg HAP metals) for ceramic tile glaze lines and MACT emission limits for PM (surrogate for non-Hg HAP metals) for sanitaryware glaze spray booths. The EPA is also finalizing work practice standards for shuttle kilns and periods of startup and shutdown. To demonstrate compliance with the emission limits, the EPA is requiring initial and repeat 5-year performance testing for the regulated pollutants, parameter monitoring, and daily VE checks. Owners/operators whose affected sources are equipped with an FF (
Table 1 of this preamble summarizes the costs and benefits of this action for 40 CFR part 63, subpart JJJJJ (BSCP Manufacturing NESHAP), while Table 2 of this preamble summarizes the costs of this action for 40 CFR part 63, subpart KKKKK (Clay Ceramics Manufacturing NESHAP). See section VI of this preamble for further discussion of the costs and benefits for the BSCP Manufacturing NESHAP and the costs for the Clay Ceramics Manufacturing NESHAP. See section VII.B of this preamble for discussion of the recordkeeping and reporting costs.
The regulated categories and entities potentially affected by this action are shown in Table 3 of this preamble:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility, company, business, organization,
In addition to being available in the docket, an electronic copy of this action is available on the Internet through the EPA's Technology Transfer Network (TTN) Web site, a forum for information and technology exchange in various areas of air pollution control. Following signature by the EPA Administrator, the EPA will post a copy of this action at
Under section 307(b)(1) of the CAA, judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by December 28, 2015. Under section 307(b)(2) of the CAA, the requirements established by these final rules may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.
Section 307(d)(7)(B) of the CAA further provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for us to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, EPA WJC North Building, 1200 Pennsylvania Ave. NW., Washington, DC 20460, with a copy to both the person(s) listed in the preceding
Section 112(d) of the CAA requires the EPA to set emissions standards for HAP emitted by sources in each source category and subcategory listed under section 112(c). The MACT standards for existing sources must be at least as stringent as the average emissions limitation achieved by the best performing 12 percent of existing sources (for which the Administrator has emissions information) or the best performing five sources for source categories with less than 30 sources (CAA section 112(d)(3)(A) and (B)). This level of minimum stringency is called the MACT floor. For new sources, MACT standards must be at least as stringent as the control level achieved in practice by the best controlled similar source (CAA section 112(d)(3)). The EPA also must consider more stringent “beyond-the-floor” control options. When considering beyond-the-floor options, the EPA must not only consider the maximum degree of reduction in emissions of HAP, but must also take into account costs, energy and nonair environmental impacts when doing so.
Pursuant to CAA section 112(c)(5), the EPA was originally required to promulgate standards for the BSCP Manufacturing and Clay Ceramics Manufacturing source categories by November 2000. The agency initially promulgated standards for these categories in 2003. See 68 FR 26690 (May 16, 2003). Those standards were challenged and subsequently vacated by the United States Court of Appeals for the District of Columbia Circuit in 2007.
Following the 2007 vacatur of the 2003 rule, the EPA began efforts to collect additional data to support new standards for the BSCP and clay ceramics industries. The EPA conducted an initial information collection effort in 2008 to update information on the inventory of affected units, hereafter referred to as “the 2008 EPA survey.” The EPA conducted a second information collection effort in 2010 to obtain additional emissions data and information on each facility's startup, shutdown, and malfunction (SSM) procedures, hereafter referred to as “the 2010 EPA survey.” The information collected as part of these surveys, and not claimed as CBI by respondents, is available in Docket ID Nos. EPA-HQ-OAR-2013-0290 and EPA-HQ-OAR-2013-0291. In addition, the dockets A-99-30 and OAR-2002-0054 are incorporated by reference for BSCP. The dockets A-2000-48, OAR-2002-0055, and EPA-HQ-OAR-2006-0424 are incorporated by reference for clay ceramics.
On December 18, 2014, the EPA proposed NESHAP for BSCP Manufacturing and NESHAP for Clay Ceramics Manufacturing. See 79 FR 75622 (December 18, 2014). In response to a request from industry, the EPA extended the public comment period for the proposed action from February 17, 2015, to March 19, 2015. See 79 FR 78768 (December 31, 2014). In this action, the EPA is finalizing the rule.
The final rule protects air quality and promotes the public health by reducing emissions of HAP emitted from BSCP and clay ceramics kilns. Emissions data collected during development of the final rule show that acid gases such as HF, HCl, and Cl
The following sections summarize the final requirements for the BSCP Manufacturing source category and Clay Ceramics Manufacturing source category. Section IV of this preamble summarizes the major changes since proposal.
The final NESHAP for BSCP Manufacturing applies to BSCP manufacturing facilities that are located at or are part of a major source of HAP emissions. The BSCP Manufacturing source category includes those facilities that manufacture brick (face brick, structural brick, brick pavers and other brick); clay pipe; roof tile; extruded floor and wall tile; and/or other extruded, dimensional clay products.
The affected sources, which are the portions of each source in the category for which we are setting standards, are (1) all tunnel kilns at a BSCP manufacturing facility and (2) each periodic kiln. For purposes of the final BSCP Manufacturing NESHAP, tunnel kilns are defined to include any type of continuous kiln used at BSCP manufacturing facilities, including roller kilns.
Tunnel kilns are fired by natural gas or other fuels, including sawdust. Sawdust firing typically involves the use of a sawdust dryer because sawdust typically is purchased wet and needs to be dried before it can be used as fuel. Consequently, some sawdust-fired tunnel kilns have two process streams, including (1) a process stream that exhausts directly to the atmosphere or to an air pollution control device (APCD), and (2) a process stream in which the kiln exhaust is ducted to a sawdust dryer where it is used to dry sawdust before being emitted to the
The following BSCP process units are not subject to the requirements of the final rule: (1) Kilns that are used exclusively for setting glazes on previously fired products, (2) raw material processing and handling, and (3) dryers. Sources regulated under the Clay Ceramics Manufacturing NESHAP or the Refractories Manufacturing NESHAP are not subject to the requirements of the BSCP Manufacturing NESHAP.
This final BSCP Manufacturing NESHAP applies to owners or operators of an affected source at a major source meeting the requirements discussed previously in this preamble. A major source of HAP emissions is any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit, considering controls, 10 tons per year (tpy) or more of any HAP or 25 tpy or more of any combination of HAP.
We are also issuing work practice standards for BSCP tunnel kilns in lieu of dioxin/furan emission limits. The work practice standards require maintaining and inspecting the burners and associated combustion controls (as applicable); tuning the specific burner type to optimize combustion; keeping records of each burner tune-up; and submitting a report for each tune-up conducted. As discussed in section III.C.1.a of this preamble, we are also issuing work practice standards for periods of startup and shutdown.
We are requiring that owners or operators of all affected sources subject to emission limits conduct an initial performance test using specified EPA test methods to demonstrate initial compliance with all applicable emission limits. A performance test must be conducted before renewing the facility's 40 CFR part 70 operating permit or at least every 5 years following the initial performance test, as well as when an operating limit parameter value is being revised.
Under the final BSCP Manufacturing NESHAP, the owner or operator is required to measure emissions of HF, HCl, Cl
• EPA Method 26A, “Determination of Hydrogen Halide and Halogen Emissions from Stationary Sources-Isokinetic Method,” 40 CFR part 60, appendix A-8;
• EPA Method 26, “Determination of Hydrogen Chloride Emissions from Stationary Sources,” 40 CFR part 60, appendix A-8, when no acid particulate (
• EPA Method 320, “Measurement of Vapor Phase Organic and Inorganic Emission by Extractive FTIR” 40 CFR part 63, appendix A, provided the test follows the analyte spiking procedures of section 13 of Method 320, unless the owner or operator can demonstrate that the complete spiking procedure has been conducted at a similar source; or
• Any other alternative method that has been approved by the Administrator under 40 CFR 63.7(f) of the General Provisions.
Following the performance test, the owner or operator must calculate the HCl-equivalent for the kiln using Equation 2 in 40 CFR 63.8445(f)(2)(i). If there are multiple kilns at a facility, the owner or operator must sum the HCl-equivalent for each kiln using Equation 3 in 40 CFR 63.8445(f)(2)(ii) to get the total facility HCl-equivalent and compare this value to the HBEL for acid gases.
As noted above, with respect to non-Hg HAP metals, the owner or operator of a source can choose to meet either a non-Hg HAP metals limit or one of two alternative PM limits. If the owner or operator chooses to comply with one of the two PM emission limits rather than the non-Hg HAP metals limit, we are requiring that the owner or operator measure PM emissions using one of the following methods:
• EPA Method 5, “Determination of Particulate Emissions from Stationary Sources,” 40 CFR part 60, appendix A-3;
• EPA Method 29, “Determination of Metals Emissions From Stationary Sources,” 40 CFR part 60, appendix A-8; or
• Any other alternative method that has been approved by the Administrator under 40 CFR 63.7(f) of the General Provisions.
If the owner or operator chooses to comply with the non-Hg HAP metals emission limit instead of one of the PM emission limits, the owner or operator must measure non-Hg HAP metals emissions using EPA Method 29 cited above or any other alternative method that has been approved by the Administrator under 40 CFR 63.7(f) of the General Provisions. The owner or operator may also use Method 29 or any other approved alternative method to measure Hg emissions.
The following paragraphs discuss the initial compliance requirements. Prior to the initial performance test, the owner or operator is required to install the continuous parameter monitoring system (CPMS) equipment (as discussed in section III.A.6 of this preamble) to be used to demonstrate continuous compliance with the operating limits. During the initial test, the owner or operator must use the CPMS to establish site-specific operating parameter values that represent the operating limits.
For a DIFF or DLS/FF, we are requiring that the owner or operator ensure that lime in the feed hopper or silo and to the APCD is free-flowing at all times during the HF/HCl/Cl
For a stand-alone FF (
For a dry limestone adsorber (DLA), we are requiring that the owner or operator continuously measure the pressure drop across the DLA during the HF/HCl/Cl
For a wet scrubber, we are requiring that the owner or operator continuously measure the scrubber liquid pH during the HF/HCl/Cl
For an activated carbon injection (ACI) system, we are requiring that the owner or operator measure the activated carbon flow rate during the Hg performance test and determine the 3-hour block average flow rate. The average of the three test runs establishes the minimum site-specific activated carbon flow rate operating limit.
For a source with no APCD installed, we are requiring that the owner or operator calculate the maximum potential HCl-equivalent using Equation 4 in 40 CFR 63.8445(g)(1)(i). The owner or operator must use the results from the performance test to determine the emissions at the maximum possible process rate. For example, if the design
The final BSCP Manufacturing NESHAP requires that the owner or operator demonstrate continuous compliance with each emission limitation that applies. The owner or operator must follow the requirements in the operation, maintenance and monitoring (OM&M) plan and document conformance with the OM&M plan. The owner or operator must also operate a CPMS to monitor the operating parameters established during the initial performance test as described in the following paragraphs. The CPMS must collect data at least every 15 minutes, including at least three of four equally spaced data values (or at least 75 percent if there are more than four data values per hour) per hour to have a valid hour of data. The owner or operator must operate the CPMS at all times when the process is operating. The owner or operator must also conduct proper maintenance of the CPMS (including inspections, calibrations and validation checks) and maintain an inventory of necessary parts for routine repairs of the CPMS. Using the recorded readings, the owner or operator must calculate and record the 3-hour block average values of each operating parameter. To calculate the average for each 3-hour averaging period, the owner or operator must have at least 75 percent of the recorded readings for that period.
For a DIFF or DLS/FF, we are requiring that the owner or operator demonstrate compliance with the acid gas (HF/HCl/Cl
The final rule provides the option to use either a BLD system or VE monitoring to demonstrate parametric compliance.
For the option of a BLD system, we are requiring that the owner or operator initiate corrective action within 1 hour of a BLD system alarm and complete corrective actions according to the OM&M plan. The owner or operator must also operate and maintain the FF such that the alarm is not engaged for more than 5 percent of the total operating time in a 6-month block reporting period. In calculating this operating time fraction, the owner or operator must not count any alarm time if inspection of the FF demonstrates that no corrective action is required. If corrective action is required, the owner or operator must count each alarm as a minimum of 1 hour. If corrective action is initiated more than 1 hour after an alarm, the owner or operator must count as alarm time the actual amount of time taken to initiate corrective action.
For the option of monitoring VE, we are requiring that if VE are observed during any daily test conducted using Method 22 of 40 CFR part 60, appendix A-7, the owner or operator must promptly conduct an opacity test, according to the procedures of Method 9 of 40 CFR part 60, appendix A-4. If opacity greater than 10 percent if observed, the owner or operator must initiate and complete corrective actions according to the OM&M plan. If no VE are observed in 30 consecutive daily Method 22 tests or no opacity greater than 10 percent is observed during any of the Method 9 tests for any kiln stack, the owner or operator may decrease the frequency of Method 22 testing from daily to weekly for that kiln stack. If VE are observed during any weekly test and opacity greater than 10 percent is observed in the subsequent Method 9 test, the owner or operator must promptly initiate and complete corrective actions according to the OM&M plan, resume testing of that kiln stack following Method 22 of 40 CFR part 60, appendix A-7, on a daily basis, and maintain that schedule until no VE are observed in 30 consecutive daily tests or no opacity greater than 10 percent is observed during any of the Method 9 tests, at which time the owner or operator may again decrease the frequency of Method 22 testing to a weekly basis.
If greater than 10 percent opacity is observed during any test conducted using Method 9 of 40 CFR part 60, appendix A-4, the owner or operator must report these deviations by following the requirements in 40 CFR 63.8485.
In lieu of conducting VE tests as described above, the owner or operator may conduct a PM test at least once every year following the initial performance test, according to the procedures of Method 5 of 40 CFR part 60, appendix A-3, and the provisions of 40 CFR 63.8445(e) and (f)(1).
For a stand-alone FF, we are requiring that the owner or operator use a BLD system or monitor VE as described above to demonstrate parametric compliance.
For a DLA, we are requiring that the owner or operator demonstrate compliance with the acid gas (HF/HCl/Cl
For a wet scrubber, we are requiring that the owner or operator continuously maintain the 3-hour block averages for scrubber liquid pH and scrubber liquid flow rate at or above the minimum values established during the applicable performance test. Maintaining the 3-hour block average for scrubber liquid pH at or above the minimum value established during the HF/HCl/Cl
For an ACI system, we are requiring that the owner or operator demonstrate compliance with the Hg emission limit by continuously monitoring the activated carbon flow rate and maintaining it at or above the operating limit established during the Hg performance test.
For sources with no APCD, we are requiring that the owner or operator monitor VE as described above to demonstrate compliance with the PM/non-Hg HAP metals emission limit. In addition, if the last calculated total facility maximum potential HCl-equivalent was not at or below the HBEL for acid gases, then we are requiring that the owner or operator collect and record data documenting the process rate of the kiln and reduce the data to 3-hour block averages. The owner or operator must maintain the kiln process rate(s) at or below the kiln process rate operating limit(s) that enables the total facility maximum potential HCl-equivalent to remain at or below the HBEL.
All new and existing sources are required to comply with certain requirements of the General Provisions (40 CFR part 63, subpart A), which are identified in Table 10 of subpart JJJJJ. The General Provisions include specific requirements for notifications, recordkeeping and reporting.
Each owner or operator is required to submit a notification of compliance status report, as required by 40 CFR 63.9(h) of the General Provisions. The final BSCP Manufacturing NESHAP requires the owner or operator to include in the notification of compliance status report certifications of compliance with rule requirements. Semiannual compliance reports, as required by 40 CFR 63.10(e)(3) of subpart A, are also required for each semiannual reporting period.
The final BSCP Manufacturing NESHAP requires records to demonstrate compliance with each emission limit and work practice standard. These recordkeeping requirements are specified directly in the General Provisions to 40 CFR part 63 and are identified in Table 8 of subpart JJJJJ.
Specifically, we are requiring that the owner or operator keep the following records:
• All reports and notifications submitted to comply with the final BSCP Manufacturing NESHAP.
• Records of performance tests.
• Records relating to APCD maintenance and documentation of approved routine control device maintenance.
• Continuous monitoring data as required in the final BSCP Manufacturing NESHAP.
• Records of BLD system alarms and corrective actions taken.
• Records of each instance in which the owner or operator did not meet each emission limit (
• Records of production rates.
• Records of approved alternative monitoring or testing procedures.
• Records of maintenance and inspections performed on the APCD.
• Current copies of the OM&M plan and records documenting conformance.
• Logs of the information required to document compliance with the periodic kiln work practice standard.
• Records of burner tune-ups used to comply with the dioxin/furan work practice standard for tunnel kilns.
• Logs of the information required to document compliance with the startup and shutdown work practice standards.
• Records of each malfunction and the corrective action taken.
• Records of parameters and procedures followed for work practice standards.
We are also requiring that the owner or operator submit the following reports and notifications:
• Notifications required by the General Provisions.
• Initial Notification no later than 120 calendar days after the affected source becomes subject to this subpart.
• Notification of Intent to conduct performance tests and/or other compliance demonstration at least 60 calendar days before the performance test and/or other compliance demonstration is scheduled.
• Notification of Compliance Status 60 calendar days following completion of a compliance demonstration that includes a performance test.
• Notification of Compliance Status 30 calendar days following completion of a compliance demonstration that does not include a performance test (
• Compliance reports semi-annually, including a report of the most recent burner tune-up conducted to comply with the dioxin/furan work practice standard and a report of each malfunction resulting in an exceedance and the corrective action taken.
• Results of each performance test within 60 calendar days of completing the test, submitted to the EPA by direct computer-to-computer electronic transfer via EPA-provided software for data collected using supported test methods (see section III.E of this preamble for more information).
This final rule for Clay Ceramics Manufacturing applies to clay ceramics manufacturing facilities that are located at or are part of a major source of HAP emissions. The Clay Ceramics Manufacturing source category includes those facilities that manufacture pressed floor tile, pressed wall tile and other pressed tile; or sanitaryware (
The affected sources, which are the portions of each source in the category for which we are setting standards, are (1) each ceramic tile roller kiln; (2) each floor tile press dryer; (3) each ceramic tile spray dryer; (4) each ceramic tile glaze line using glaze spraying; (5) each sanitaryware tunnel kiln; (6) each sanitaryware shuttle kiln; and (7) each sanitaryware glaze spray booth.
The following clay ceramics process units are not subject to the requirements
This final Clay Ceramics Manufacturing NESHAP applies to owners or operators of an affected source at a major source meeting the requirements discussed previously in this preamble. A major source of HAP emissions is any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit, considering controls, 10 tpy or more of any HAP or 25 tpy or more of any combination of HAP.
We are requiring that owners or operators of all affected sources subject to emission limits conduct an initial
Under the final Clay Ceramics Manufacturing NESHAP, the owner or operator is required to measure emissions of HF, HCl, Hg, PM (as a surrogate for non-Hg HAP metals) and dioxins/furans. The owner or operator must measure HF and HCl from ceramic tile roller kilns and sanitaryware first-fire tunnel kilns using one of the following methods:
• EPA Method 26A, “Determination of Hydrogen Halide and Halogen Emissions from Stationary Sources-Isokinetic Method,” 40 CFR part 60, appendix A-8;
• EPA Method 26, “Determination of Hydrogen Chloride Emissions from Stationary Sources,” 40 CFR part 60, appendix A-8, when no acid particulate (
• EPA Method 320, “Measurement of Vapor Phase Organic and Inorganic Emission by Extractive FTIR” 40 CFR part 63, appendix A, provided the test follows the analyte spiking procedures of section 13 of Method 320, unless the owner or operator can demonstrate that the complete spiking procedure has been conducted at a similar source; or
• Any other alternative method that has been approved by the Administrator under 40 CFR 63.7(f) of the General Provisions.
Following the performance test, the owner or operator must calculate the HCl-equivalent for the kiln using Equation 4 in 40 CFR 63.8595(f)(4)(i). If there are multiple kilns at a facility, the owner or operator must sum the HCl-equivalent for each kiln using Equation 5 in 40 CFR 63.8595(f)(4)(ii) to get the total facility HCl-equivalent and compare this value to the HBEL.
We are requiring that the owner or operator measure PM emissions from ceramic tile roller kilns and sanitaryware first-fire tunnel kilns using one of the following methods:
• EPA Method 5, “Determination of Particulate Emissions from Stationary Sources,” 40 CFR part 60, appendix A-3;
• EPA Method 29, “Determination of Metals Emissions From Stationary Sources,” 40 CFR part 60, appendix A-8; or
• Any other alternative method that has been approved by the Administrator under 40 CFR 63.7(f) of the General Provisions.
Method 29 or any other approved alternative method may also be used to measure Hg emissions from ceramic tile roller kilns, ceramic tile glaze lines and sanitaryware first-fire tunnel kilns.
We are requiring that the owner or operator measure PM emissions from ceramic tile and sanitaryware glaze spray booths using EPA Method 5 or any other alternative method that has been approved by the Administrator under 40 CFR 63.7(f) of the General Provisions.
We are also requiring that the owner or operator measure dioxin/furan emissions from ceramic tile roller kilns and spray dryers, floor tile press dryers and sanitaryware first-fire tunnel kilns using EPA Method 23, “Determination of Polychlorinated Dibenzo-p-Dioxins and Polychlorinated Dibenzofurans From Stationary Sources,” 40 CFR part 60, appendix A-7 or any other alternative method that has been approved by the Administrator under 40 CFR 63.7(f) of the General Provisions.
The following paragraphs discuss the initial compliance requirements. Prior to the initial performance test, the owner or operator is required to install the CPMS equipment (as discussed in section III.B.6 of this preamble) to be used to demonstrate continuous compliance with the operating limits. During the initial test, the owner or operator must use the CPMS to establish site-specific operating parameter values that represent the operating limits.
For a DIFF or DLS/FF, we are requiring that the owner or operator ensure that lime in the feed hopper or silo and to the APCD is free-flowing at all times during the HF/HCl performance test and record the feeder setting (on a per ton of fired product basis) for the three test runs. If the lime feed rate varies, the owner or operator is required to determine the average feed rate from the three test runs. The average of the three test runs establishes the minimum site-specific feed rate operating limit. If there are different average feed rate values during the PM and HF/HCl tests, the highest of the average values becomes the site-specific operating limit. If a BLD system is present, the owner or operator is required to submit analyses and supporting documentation demonstrating conformance with EPA guidance and specifications for BLD systems.
For a stand-alone FF (
For a wet scrubber, we are requiring that the owner or operator continuously measure the scrubber liquid pH during the HF/HCl performance test and the scrubber liquid flow rate during both the PM and HF/HCl performance tests. For each wet scrubber parameter, the owner or operator is required to determine and record the average values for the three test runs and the 3-hour block average value. The average of the three test runs establishes the minimum site-specific liquid pH and liquid flow rate operating limits. If different average wet scrubber liquid flow rate values are measured during the PM and HF/HCl tests, the highest of the average values become the site-specific operating limits.
For an ACI system, we are requiring that the owner or operator measure the activated carbon flow rate during the Hg and dioxin/furan performance tests and determine the 3-hour block average flow rate. The average of the three test runs establishes the minimum site-specific activated carbon flow rate operating limit. If different average activated carbon flow rate values are measured during the Hg and dioxin/furan tests, the highest of the average values becomes the site-specific operating limit.
If the owner or operator intends to comply with the dioxin/furan emission limit without an ACI system, we are requiring that the owner or operator measure the stack temperature of the tunnel or roller kiln during the dioxin/furan performance test. The highest 4-hour average stack temperature of the three test runs establishes the maximum site-specific operating limit. The owner or operator must also measure the operating temperatures of the ceramic tile spray dryer and floor tile press dryer during the dioxin/furan performance test and determine the 3-hour block average temperature. The average of the three test runs establishes the site-specific operating limit.
For sources with no APCD installed, we are requiring that the owner or operator calculate the maximum potential HCl-equivalent using Equation 6 in 40 CFR 63.8595(g)(1)(i). The owner or operator must use the results from the performance test to determine the emissions at the maximum possible process rate. For example, if the design capacity of the tunnel or roller kiln is 10 tph and the production rate during the performance test was 9 tph, then the test results represent 90 percent of the
The final Clay Ceramics Manufacturing NESHAP requires that the owner or operator demonstrate continuous compliance with each emission limitation that applies. The owner or operator must follow the requirements in the OM&M plan and document conformance with the OM&M plan. The owner or operator must also operate a CPMS to monitor the operating parameters established during the initial performance test as described in the following paragraphs. The CPMS must collect data at least every 15 minutes, including at least three of four equally spaced data values (or at least 75 percent if there are more than four data values per hour) per hour to have a valid hour of data. The owner or operator must operate the CPMS at all times when the process is operating. The owner or operator must also conduct proper maintenance of the CPMS, including inspections, calibrations and validation checks, and maintain an inventory of necessary parts for routine repairs of the CPMS. Using the recorded readings, the owner or operator must calculate and record the 3-hour block average values of each operating parameter. To calculate the average for each 3-hour averaging period, the owner or operator must have at least 75 percent of the recorded readings for that period.
For a DIFF or DLS/FF, we are requiring that the owner or operator demonstrate compliance with the acid gas (HF/HCl) HBEL by maintaining free-flowing lime in the feed hopper or silo and to the APCD at all times. If lime is found not to be free flowing via the output of a load cell, carrier gas/lime flow indicator, carrier gas pressure drop measurement system or other system, the owner or operator must promptly initiate and complete corrective actions according to the OM&M plan. The owner or operator must also maintain the feeder setting (on a per ton of throughput basis) at or above the level established during the performance test and record the feeder setting once each shift.
For a DIFF or DLS/FF, the final rule provides the option to use either a BLD system or VE monitoring to demonstrate parametric compliance.
For the option of a BLD system, we are requiring that the owner or operator initiate corrective action within 1 hour of a BLD system alarm and complete corrective actions according to the OM&M plan. The owner or operator must also operate and maintain the FF such that the alarm is not engaged for more than 5 percent of the total operating time in a 6-month block reporting period. In calculating this operating time fraction, if inspection of the FF demonstrates that no corrective action is required, no alarm time is counted. If corrective action is required, each alarm must be counted as a minimum of 1 hour and if corrective action is initiated more than 1 hour after an alarm, the alarm time must be counted as the actual amount of time taken to initiate corrective action.
For the option of monitoring VE, we are requiring that the owner or operator perform daily, 15-minute VE observations in accordance with the procedures of EPA Method 22, “Visual Determination of Fugitive Emissions from Material Sources and Smoke Emissions from Flares,” 40 CFR part 60, appendix A-7. During the VE observations, the source must be operating under normal conditions. If VE are observed, the owner or operator must promptly initiate and complete corrective actions according to the OM&M plan. If no VE are observed in 30 consecutive daily EPA Method 22 tests, the owner or operator may decrease the frequency of EPA Method 22 testing from daily to weekly for that source. If VE are observed during any weekly test, the owner or operator must promptly initiate and complete corrective actions according to the OM&M plan and the owner or operator must resume EPA Method 22 testing of that source on a daily basis until no VE are observed in 30 consecutive daily tests, at which time the owner or operator may again decrease the frequency of EPA Method 22 testing to a weekly basis.
For a stand-alone FF, we are requiring that the owner or operator use a BLD system or monitor VE as described above to demonstrate parametric compliance.
For a wet scrubber on a tunnel or roller kiln, we are requiring that the owner or operator continuously maintain the 3-hour block averages for scrubber liquid pH and scrubber liquid flow rate at or above the minimum values established during the applicable performance test. Maintaining the 3-hour block average for scrubber liquid pH at or above the minimum values established during the HF/HCl performance test demonstrates compliance with the acid gas (HF/HCl) HBEL. Maintaining the 3-hour block average for scrubber liquid flow rate at or above the lowest minimum value established during the PM and HF/HCl performance tests demonstrates compliance with all applicable emission limits by showing that the scrubber is in proper working order.
For an ACI system, we are requiring that the owner or operator demonstrate compliance with the Hg and dioxin/furan emission limits by continuously monitoring the activated carbon flow rate and maintaining it at or above the lowest minimum value established during the Hg and dioxin/furan performance tests.
If the owner or operator intends to comply with the dioxin/furan emission limit without an ACI system, we are requiring that the owner or operator demonstrate compliance by continuously monitoring the stack temperature of the tunnel or roller kiln and the operating temperature of the ceramic tile spray dryer and floor tile press dryer and maintaining it at or below the highest 4-hour average temperature during the dioxin/furan performance test for the tunnel or roller kiln, at or above the average temperature during the dioxin/furan performance test for the ceramic tile spray dryer, and at or below the average temperature during the dioxin/furan performance test for the floor tile press dryer.
For a wet scrubber on a spray glazing operation, we are requiring that the
For a water curtain on a spray glazing operation, we are requiring that the owner or operator demonstrate compliance with the PM emission limit by conducting a daily inspection to verify the presence of water flow to the wet control system, conducting weekly visual inspections of the system ductwork and control equipment for leaks and conducting annual inspections of the interior of the control equipment (if applicable) to determine the structural integrity and condition of the control equipment.
For baffles on a spray glazing operation, we are requiring that the owner or operator demonstrate compliance with the PM emission limit by conducting an annual visual inspection of the baffles to confirm the baffles are in place.
For a source with no APCD, we are requiring that, to demonstrate compliance with the PM emission limit, the owner or operator monitor VE as described above. We are also requiring that, to demonstrate compliance with the dioxin/furan emission limit, the owner or operator continuously monitor the stack temperature of the tunnel or roller kiln and operating temperature of the ceramic tile spray dryer and floor tile press dryer and maintain it at or below the highest 4-hour average stack temperature during the dioxin/furan performance test for the tunnel or roller kiln, at or above the average operating temperature during the dioxin/furan performance test for the ceramic tile spray dryer, and at or below the average operating temperature during the dioxin/furan performance test for the floor tile press dryer. In addition, if the last calculated total facility maximum potential HCl-equivalent was not at or below the HBEL for acid gases, then we are requiring that the owner or operator collect and record data documenting the process rate of the tunnel or roller kiln and reduce the data to 3-hour block averages. The owner or operator must maintain the kiln process rate(s) at or below the kiln process rate operating limit(s) that enables the total facility maximum potential HCl-equivalent to remain at or below the HBEL.
All new and existing sources are required to comply with certain requirements of the General Provisions (40 CFR part 63, subpart A), which are identified in Table 11 of subpart KKKKK. The General Provisions include specific requirements for notifications, recordkeeping and reporting.
Each owner or operator is required to submit a notification of compliance status report, as required by 40 CFR 63.9(h) of the General Provisions. This final Clay Ceramics Manufacturing NESHAP requires the owner or operator to include in the notification of compliance status report certifications of compliance with rule requirements. Semiannual compliance reports, as required by 40 CFR 63.10(e)(3) of subpart A, are also required for each semiannual reporting period.
This final Clay Ceramics Manufacturing NESHAP requires records to demonstrate compliance with each emission limit and work practice standard. These recordkeeping requirements are specified directly in the General Provisions to 40 CFR part 63 and are identified in Table 9 of subpart KKKKK.
Specifically, we are requiring that the owner or operator must keep the following records:
• All reports and notifications submitted to comply with this final Clay Ceramics Manufacturing NESHAP.
• Records of performance tests.
• Records relating to APCD maintenance and documentation of approved routine control device maintenance.
• Continuous monitoring data as required in this final Clay Ceramics Manufacturing NESHAP.
• Records of BLD system alarms and corrective actions taken.
• Each instance in which the owner or operator did not meet each emission limit (
• Records of production rates.
• Records of approved alternative monitoring or testing procedures.
• Records of maintenance and inspections performed on the APCD.
• Current copies of the OM&M plan and records documenting conformance.
• Logs of the information required to document compliance with the shuttle kiln work practice standard.
• Logs of the information required to document compliance with the startup and shutdown work practice standards.
• Records of each malfunction and the corrective action taken.
• Records of parameters and procedures followed for work practice standards.
We are also requiring that the owner or operator submit the following reports and notifications:
• Notifications required by the General Provisions.
• Initial Notification no later than 120 calendar days after the affected source becomes subject to this subpart.
• Notification of Intent to conduct performance tests and/or other compliance demonstration at least 60 calendar days before the performance test and/or other compliance demonstration is scheduled.
• Notification of Compliance Status 60 calendar days following completion of a compliance demonstration that includes a performance test.
• Notification of Compliance Status 30 calendar days following completion of a compliance demonstration that does not include a performance test (
• Compliance reports semi-annually, including a report of each malfunction resulting in an exceedance and the corrective action taken.
• Report of alternative fuel use within 10 working days after terminating use of the alternative fuel.
• Results of each performance test within 60 calendar days of completing the test, submitted to the EPA by direct computer-to-computer electronic transfer via EPA-provided software for data collected using supported test methods (see section III.E of this preamble for more information).
In its 2008 decision in
Consistent with
The EPA is issuing the work practice standards described in this paragraph for periods of startup and shutdown for BSCP tunnel kilns with APCD. As a first step, the owner or operator is required to determine the APCD minimum inlet temperature and the startup kiln car push rate of the product. For startup, the owner or operator is required to vent the exhaust from the kiln through the APCD at all times when the exhaust temperature is at or above the minimum inlet temperature. In addition, the owner or operator may not exceed the startup kiln car push rate until the kiln exhaust is vented to the APCD. For shutdown, the owner or operator is required to vent the exhaust from the kiln through the APCD until the kiln exhaust temperature falls below the APCD minimum inlet temperature. In addition, the kiln car push rate is to be steadily decreased to zero as the kiln cools. No additional loaded kiln cars may be introduced into the kiln once the kiln exhaust temperature falls below the APCD minimum inlet temperature. When the kiln exhaust is being vented through the APCD, the owner or operator is required to comply with the applicable continuous compliance requirements described in section III.A.6 of this preamble.
The EPA is issuing similar work practice standards for periods of startup and shutdown for BSCP tunnel kilns without an APCD as well. As a first step, the owner or operator is required to determine the product-specific kiln temperature profile and the startup kiln car push rate of the product. For startup, the startup kiln car push rate may not be exceeded until the kiln reaches the product-specific kiln temperature profile. For shutdown, the kiln car push rate is to be steadily decreased to zero as the kiln cools. No additional loaded kiln cars may be introduced into the kiln once the kiln falls below the product-specific kiln temperature profile. When the kiln production rate is greater than the startup kiln car push rate, the owner or operator is required to comply with the applicable continuous compliance requirements described in section III.A.6 of this preamble.
The EPA is issuing the work practice standards described in this paragraph for periods of startup and shutdown for ceramic tile roller kilns, floor tile press dryers, ceramic tile spray dryers and sanitaryware tunnel kilns with APCD. As a first step, the owner or operator is required to determine the APCD minimum inlet temperature and the startup production rate of the product. For startup, the owner or operator is required to vent the exhaust from the kiln or dryer through the APCD at all times when the exhaust temperature is at or above the minimum inlet temperature. In addition, the owner or operator may not exceed the startup production rate of the product until the kiln or dryer exhaust is being vented through the APCD. For shutdown, the owner or operator is required to vent the exhaust from the kiln or dryer through the APCD until the exhaust temperature falls below the APCD minimum inlet temperature. In addition, the production rate is to be steadily decreased to zero as the kiln or dryer cools. No additional throughput may be introduced to the kiln, press dryer and spray dryer once the exhaust temperature falls below the APCD minimum inlet temperature. When the exhaust is being vented through the APCD, the owner or operator is required to comply with the applicable continuous compliance requirements described in section III.B.6 of this preamble.
The EPA is also issuing work practice standards for periods of startup and shutdown for ceramic tile roller kilns, floor tile press dryers, ceramic tile spray dryers and sanitaryware tunnel kilns without an APCD. As a first step, the owner or operator is required to determine the product-specific kiln or dryer temperature profile and the startup production rate of the product. For startup, the startup production rate may not be exceeded until the kiln or dryer exhaust temperature reaches the product-specific temperature profile. For shutdown, the production rate is to be steadily decreased to zero as the kiln or dryer cools. No additional throughput may be introduced to the kiln, press dryer and spray dryer once the kiln, press dryer or spray dryer falls below the product-specific temperature profile. When the kiln or dryer production rate is greater than the startup production rate, the owner or operator is required to comply with the applicable continuous compliance requirements described in section III.B.6 of this preamble.
Periods of startup, normal operations, and shutdown are all predictable and routine aspects of a source's operations. Malfunctions, in contrast, are neither predictable nor routine. Instead they are by definition sudden, infrequent and not reasonably preventable failures of emissions control, process or monitoring equipment (40 CFR 63.2) (Definition of malfunction). The EPA interprets CAA section 112 as not requiring emissions that occur during periods of malfunction to be factored into development of CAA section 112 standards. Under section 112, emissions standards for new sources must be no less stringent than the level “achieved” by the best controlled similar source and for existing sources generally must be no less stringent than the average emission limitation “achieved” by the best performing 12 percent of sources in the category. There is nothing in CAA section 112 that directs the agency to consider malfunctions in determining the level “achieved” by the best performing sources when setting emission standards. As the DC Circuit has recognized, the phrase “average emissions limitation achieved by the best performing 12 percent of” sources “says nothing about how the performance of the best units is to be calculated.”
Further, accounting for malfunctions in setting emission standards would be difficult, if not impossible, given the myriad different types of malfunctions that can occur across all sources in the category and given the difficulties associated with predicting or accounting for the frequency, degree, and duration of various malfunctions that might occur. As such, the performance of units that are malfunctioning is not “reasonably” foreseeable.
In the event that a source fails to comply with the applicable CAA section 112(d) standards as a result of a malfunction event, the EPA would determine an appropriate response based on, among other things, the good faith efforts of the source to minimize emissions during malfunction periods, including preventative and corrective actions, as well as root cause analyses to ascertain and rectify excess emissions. The EPA would also consider whether the source's failure to comply with the CAA section 112(d) standard was, in fact, sudden, infrequent, not reasonably preventable and was not instead caused in part by poor maintenance or careless operation. 40 CFR 63.2 (definition of malfunction).
If the EPA determines in a particular case that an enforcement action against a source for violation of an emission standard is warranted, the source can raise any and all defenses in that enforcement action and the federal district court will determine what, if any, relief is appropriate. The same is true for citizen enforcement actions. Similarly, the presiding officer in an administrative proceeding can consider any defense raised and determine whether administrative penalties are appropriate.
In summary, the EPA interpretation of the CAA and, in particular, section 112 is reasonable and encourages practices that will avoid malfunctions. Administrative and judicial procedures for addressing exceedances of the standards fully recognize that violations may occur despite good faith efforts to comply and can accommodate those situations.
The NESHAP for BSCP Manufacturing and Clay Ceramics Manufacturing are effective on December 28, 2015.
If the initial startup of the affected source is after December 18, 2014, but before December 28, 2015, then the compliance date is no later than December 28, 2015. If the initial startup of the affected source is after December 28, 2015, then the compliance date is immediately upon initial startup of the affected source. The compliance date for existing affected sources is no later than December 26, 2018.
The initial performance test must be conducted within 180 calendar days after the compliance date specified in 40 CFR 63.8395 for affected sources of BSCP manufacturing and 40 CFR 63.8545 for affected sources of clay ceramics manufacturing, according to the provisions in 40 CFR 60.7(a)(2). The first of the 5-year repeat tests must be conducted no later than 5 years following the initial performance test, and thereafter within 5 years from the date of the previous performance test. The date to submit performance test data through the Electronic Reporting Tool (ERT) is within 60 calendar days after the date of completing each performance test.
The EPA is requiring owners or operators of BSCP and clay ceramics facilities to submit electronic copies of certain required performance test reports through the EPA's Central Data Exchange (CDX) using the Compliance and Emissions Data Reporting Interface (CEDRI). As stated in the proposed preamble, the EPA believes that the electronic submittal of the reports addressed in this rulemaking will increase the usefulness of the data contained in those reports, is in keeping with current trends in data availability, will further assist in the protection of public health and the environment and will ultimately result in less burden on the regulated community. Electronic reporting can also eliminate paper-based, manual processes, thereby saving time and resources, simplifying data entry, eliminating redundancies, minimizing data reporting errors and providing data quickly and accurately to the affected facilities, air agencies, the EPA and the public.
As mentioned in the preamble of the proposal, the EPA Web site that stores the submitted electronic data, WebFIRE, will be easily accessible to everyone and will provide a user-friendly interface that any stakeholder could access. By making the records, data and reports addressed in this rulemaking readily available, the EPA, the regulated community and the public will benefit when the EPA conducts its CAA-required technology and risk-based reviews. As a result of having reports readily accessible, our ability to carry out comprehensive reviews will be increased and achieved within a shorter period of time.
We anticipate fewer or less substantial information collection requests (ICRs) in conjunction with prospective CAA-required technology and risk-based reviews may be needed. We expect this to result in a decrease in time spent by industry to respond to data collection requests. We also expect the ICRs to contain less extensive stack testing provisions, as we will already have stack test data electronically. Reduced testing requirements would be a cost savings to industry. The EPA should also be able to conduct these required reviews more quickly. While the regulated community may benefit from a reduced burden of ICRs, the general public benefits from the agency's ability to provide these required reviews more quickly, resulting in increased public health and environmental protection.
Air agencies could benefit from more streamlined and automated review of the electronically submitted data. Having reports and associated data in electronic format will facilitate review through the use of software “search” options, as well as the downloading and analyzing of data in spreadsheet format. The ability to access and review air emission report information electronically will assist air agencies to
For a more thorough discussion of electronic reporting required by this rule, see the discussion in the preamble of the proposal. In summary, in addition to supporting regulation development, control strategy development and other air pollution control activities, having an electronic database populated with performance test data will save industry, air agencies, and the EPA significant time, money, and effort while improving the quality of emission inventories, air quality regulations, and enhancing the public's access to this important information.
In this final rule, the EPA is including regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is incorporating by reference the following documents described in the amendments to 40 CFR 63.14:
• ANSI/ASME PTC 19.10-1981, Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus], (Issued August 31, 1981), IBR approved for Table 4 to subpart JJJJJ and Table 4 to subpart KKKKK. To correct an earlier, inadvertent error that exists in the CFR, we are also adding back in the IBR approval for Table 4 to subpart JJJJJJ.
• ASTM D6348-03 (Reapproved 2010), Standard Test Method for Determination of Gaseous Compounds by Extractive Direct Interface Fourier Transform Infrared (FTIR) Spectroscopy, including Annexes A1 through A8, (Approved October 1, 2010), IBR approved for Tables 4 and 5 to subpart JJJJJ and Tables 4 and 6 to subpart KKKKK.
• ASTM D6784-02 (Reapproved 2008), Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury in Flue Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method), (Approved April 1, 2008), IBR approved for Tables 4 and 5 to subpart JJJJJ and Tables 4 and 6 to subpart KKKKK.
• ASTM D6735-01 (Reapproved 2009), Standard Test Method for Measurement of Gaseous Chlorides and Fluorides from Mineral Calcining Exhaust Sources—Impinger Method, IBR approved for Tables 4 and 5 to subpart JJJJJ and Tables 4 and 6 to subpart KKKKK.
• EPA-454/R-98-015, Office of Air Quality Planning and Standards (OAQPS), Fabric Filter Bag Leak Detection Guidance, September 1997, IBR approved for 40 CFR 63.8450(e)(1), (9), and (10) and 40 CFR 63.8600(e)(1), (9), and (10).
The EPA has made, and will continue to make, these documents generally available electronically through
The following sections summarize the significant changes made to the proposed BSCP Manufacturing NESHAP and Clay Ceramics Manufacturing NESHAP, including the rationale for those changes, to respond to public comments and to correct technical inconsistencies or editorial errors in the proposal. A detailed discussion of these and other public comments, as well as other changes not discussed in this section, can be found in the response-to-comments documents, available in Docket ID No. EPA-HQ-OAR-2013-0291 for BSCP Manufacturing and Docket ID No. EPA-HQ-OAR-2013-0290 for Clay Ceramics Manufacturing. All changes to the final rules, including the significant changes discussed in this section and all other changes not discussed in this section, can also be found in the redline comparison of the proposed and final regulatory text, available in Docket ID No. EPA-HQ-OAR-2013-0291 for BSCP Manufacturing and Docket ID No. EPA-HQ-OAR-2013-0290 for Clay Ceramics Manufacturing.
Following proposal, the EPA learned that two of the facilities in the inventory at proposal were closed and the kilns were demolished. In addition, the EPA learned that two of the synthetic area sources in the inventory at proposal were actually true area sources. These facilities were removed from the master inventory, and the test data from kilns at two of these facilities were also removed from the data set. The EPA learned that a new tunnel kiln had been constructed at a new facility, and that new facility was added to the inventory. The EPA also received additional HF, HCl, and PM test data for three kilns, which was added into the data set.
In addition, the EPA examined the PM test data more closely and found that a number of the EPA Method 5 test runs had probe or filter temperatures outside of the range of acceptable values. EPA Method 5 specifies that the temperature should be maintained at 248 ± 25 degrees Fahrenheit (°F) (
Several public commenters stated that the concentration limits for PM and Hg should not be corrected to 7-percent O
At proposal, the MACT floors for PM as a surrogate for total non-Hg HAP metals were based on kilns with FF-based APCD, as the EPA considered those to be the best performing sources in the industry. However, as noted in section IV.A.1 of this preamble, the EPA after proposal examined the PM test data in an effort to insure that the data were valid. We found a number of the EPA Method 5 test runs had probe or filter temperatures outside of the range of acceptable values. These out-of-range temperatures invalidated the test runs, and in some cases, invalidated entire PM tests, reducing the set of valid, available test data. Some of the PM test
In addition, at proposal the EPA requested more data to further substantiate that kilns with FF-based APCD actually represented the best performing sources in terms of PM emissions. For example, there were some data in the record at the time of the proposal suggesting that in some cases, uncontrolled kilns actually had emissions below the PM emissions of some kilns with FF-based APCD, which is contrary to what we would expect. The EPA requested information to explain these anomalies. However, information was not received during the comment period sufficient to explain why some kilns without FF-based APCD emitted at levels as low as or lower than some kilns with FF-based APCD.
For this reason, and because some of the emissions data on DIFF-controlled kilns had to be removed from the data pool as discussed above, the record does not support the conclusion that we have PM emissions data on all the best performing kilns in the industry. Given that, we are instead basing the PM MACT floor on 12 percent of the kilns for which we have emissions data. Therefore, the final MACT floor pools for PM as a surrogate for total non-Hg HAP metals are not based on the top 12 percent of the kilns in the industry (
In addition, in response to public comments received on the proposed rule, and consistent with the proposed alternate approach in section IV.Q.1 of the preamble to the proposed rule, the EPA has decided to exercise its discretion to subcategorize for emissions of PM based on kiln size in the final rule. Section 112(d)(1) of the CAA allows the EPA to promulgate emission standards for either categories or subcategories of sources. Section IV.C of the preamble to the proposed rule (79 FR 75633) described the EPA's assessment of tunnel kiln size subcategories. When the EPA recalculated the MACT floor pools for PM as a surrogate for total non-Hg HAP metals as described in the previous paragraph, the EPA evaluated subcategorizing by kiln size and determined it is appropriate to exercise its discretion to subcategorize in this case. This subcategorization provides additional flexibility for small tunnel kilns, many of which are operated by small businesses. Therefore, the final MACT floor limits for PM as a surrogate for total non-Hg HAP metals are based on the best performing 12 percent of the sources in each of the kiln size subcategories with valid test data (
The EPA also proposed two alternative equivalent limits, calculated based on the same best performing sources ranked by lb/ton, then using those units' concentration or lb/hr data to calculate the floor. During the public comment period, the EPA received comments that each alternative limit should be calculated according to a separate ranking based on the specific unit of measure. Upon further analysis of the data sets for each unit of measure, the EPA has found that there are some differences in the top ranked sources between each unit of measure data set and thus finds the alternative limits expressed on their own unit of measure data set ranking to be the most indicative of that data set's MACT floor. Therefore, the EPA re-ranked the data for each unit of measurement in each kiln size subcategory separately. The final alternative equivalent limits are based on the top 12 percent of the data available in each subcategory according to these revised rankings. In other words, the concentration floor is based on the ranking of the concentration data, and the lb/hr floor is based on the ranking of the lb/hr data. Each floor is based on the best performing units for that unit of measurement. In addition, the final lb/hr non-Hg HAP metals alternative limit is based on a ranking of the non-Hg HAP metals data rather than the use of conversion factors applied to the PM lb/ton floor limit, as was done at proposal.
At proposal, the EPA developed Hg MACT floors based on the best performing 12 percent of sources (
The EPA proposed work practice standards during periods of startup and shutdown for tunnel kilns with and without APCD. These standards set a minimum temperature above which the exhaust must be vented through an APCD (if applicable) and below which no product could be introduced to the kiln (400 °F for startup and 300 °F for shutdown). Industry commenters indicated that the exhaust of some kilns never reaches the specific temperatures proposed by the EPA, and that some product must be introduced to the kiln during startup to heat the kiln enough for full production. The EPA evaluated these comments and agrees that the proposed standards do not actually represent the work practices representative of the best performing kilns. The intent of the proposed standards was to represent work practices of the best performing kilns to minimize emissions by limiting the amount of brick being fired before the kiln reaches full production and limiting the amount of time the exhaust is not being routed to the APCD, if applicable. As noted at proposal, the standards were based on information received through the 2010 EPA survey. The EPA received additional information following proposal on the procedures used during periods of startup and shutdown for BSCP tunnel kilns that are more representative of the best performing kilns.
Therefore, the EPA is finalizing work practice standards for periods of startup and shutdown that are based upon the same principles as the proposed standards but are representative of how kilns actually perform during startup. Instead of defining the minimum inlet APCD temperature as 400 °F, the EPA is requiring the owner or operator to
After proposal, a public commenter identified a transcription error in the production rate for the PM and Hg stack tests for one floor tile roller kiln. The production rate was corrected, and the PM and Hg lb/ton values were recalculated. In addition, the EPA examined the PM test data more closely and found that a number of the EPA Method 5 test runs had probe or filter temperatures outside of the range of acceptable values. EPA Method 5 specifies that the temperature should be maintained at 248 ± 25 °F (
During the public comment period, the sanitaryware manufacturing company that provided all of the data used for the sanitaryware tunnel kiln MACT floors clarified that the production rates they provided in their CAA section 114 survey response are in terms of “greenware fired” into the kiln rather than “fired product” coming out of the kiln (as requested in the section 114 survey). Therefore, to be consistent with the data, the final emission limits for PM as a surrogate for non-Hg HAP metals and Hg from sanitaryware tunnel kilns are in terms of lb/ton of greenware fired rather than lb/ton of product fired (as proposed).
Finally, in response to comments requesting a change in the format of the emission limits for dioxins/furans, the EPA recalculated the emissions for each test run in units of ng/kg of throughput (specifically, “fired product” for ceramic tile roller kilns, “greenware fired” for sanitaryware tunnel kilns, and “throughput processed” for ceramic tile press dryers and spray dryers). The MACT floors were then recalculated using those data, and the final emission limits for dioxins/furans for clay ceramics sources are in units of ng/kg rather than concentration as proposed.
The EPA proposed work practice standards during periods of startup and shutdown for ceramic tile roller kilns, floor tile press dryers, ceramic tile spray dryers and sanitaryware tunnel kilns with and without APCD. These standards set a minimum temperature above which the exhaust must be vented through an APCD (if applicable) and below which no product could be introduced to the kiln or dryer (400 °F for startup and 300 °F for shutdown). One industry commenter indicated that the exhaust of some dryers never reach the specific temperatures proposed by the EPA. The EPA evaluated the comment and agrees that the proposed standards are not actually representative of the best performing dryers.
Therefore, the EPA is finalizing work practice standards for periods of startup and shutdown that are based upon the same principles as the proposed standards but more accurately reflect the best performing sources. Instead of defining the minimum inlet APCD temperature as 400 °F, the EPA is requiring the owner or operator to determine the minimum inlet temperature for each APCD. If a kiln or dryer does not have an APCD, the owner or operator is required to determine the product-specific kiln or dryer temperature profile that must be achieved before the kiln or dryer can reach full production. In addition, instead of specifying that no product can be introduced to the kiln or dryer, the EPA is requiring the owner or operator to determine the production rate needed to start up the kiln or dryer. The final startup standards specify that this startup production rate cannot be exceeded until the kiln or dryer exhaust reaches the APCD minimum inlet temperature or the product-specific kiln or dryer temperature profile. The final shutdown standards specify that no additional throughput can be introduced once the kiln or dryer exhaust falls below the APCD minimum inlet temperature or the product-specific kiln or dryer temperature profile.
A number of changes have been made to the monitoring requirements for the BSCP and Clay Ceramics Manufacturing NESHAP in response to comments on the proposed rule. These changes are summarized in Table 6 of this preamble. Further details about the basis for these changes are provided in the response-to-comments documents for the BSCP Manufacturing NESHAP and the Clay Ceramics Manufacturing NESHAP, available in Docket Nos. EPA-HQ-OAR-2013-0290 (Clay Ceramics Manufacturing) and EPA-HQ-OAR-2013-0291 (BSCP Manufacturing).
The EPA received a total of 52 public comment letters on the proposed BSCP Manufacturing NESHAP. (See Docket ID No. EPA-HQ-OAR-2013-0291 for the complete public comments.) The EPA received a total of seven public comment letters on the proposed Clay Ceramics Manufacturing NESHAP. (See Docket ID No. EPA-HQ-OAR-2013-0290 for the complete public comments.) The following sections summarize the major public comments received on the proposal and present the EPA's responses to those comments.
Similarly, the second commenter expressed concern over using CAA section 112(d)(4) and health-based risk assessment for setting the HCl, HF and Cl
The commenter supported focusing on pollutants that pose the greatest risks but expressed concern that the EPA has not adequately established that the approaches used are appropriate. The commenter asserted that the EPA's approach represented a far-reaching and significant change in the manner in which MACT standards are established under CAA section 112(d) and that it was inappropriate for the EPA to propose such changes in a rulemaking for individual source categories instead of discussing the approach with all affected parties. The commenter noted that Congress established section 112 of the CAA to rely on a technology-based approach to avoid the gridlock of the unsuccessful risk-based methods used before the adoption of the 1990 CAA Amendments. Accordingly, while the CAA includes language under section 112(d)(4) allowing the use of risk in the establishment of MACT, it should be used only under limited and very specific circumstances, and the commenter stated that the EPA's proposal did not adequately make the case for the use of CAA section 112(d)(4).
Conversely, two other commenters stated that the EPA has clear legal authority to set HBEL and ample justification to do so for the BSCP source category. The commenters stated that under the terms of this provision, the EPA may set an emission standard at a level higher than would be required by CAA section 112(d)(4), provided that: (1) The pollutant(s) being regulated is a threshold pollutant and (2) the standard provides an ample margin of safety. The
The commenters asserted that the proposed standard is consistent with Congress's expectations regarding the implementation of CAA section 112(d)(4). According to the Senate report accompanying the legislation, “For some pollutants a MACT emission limitation may be far more stringent than is necessary to protect public health and the environment” and in such situations, “[t]o avoid expenditures by regulated entities which secure no public health or environmental benefit, the Administrator is given discretionary authority to consider the evidence for a health threshold higher than MACT at the time the standard is under review.”
Conversely, two commenters agreed with the EPA that the available health data indicate that HCl, HF, and Cl
Specifically, none of the compounds discussed here has been classified as a carcinogen or as “suggestive of the potential to be carcinogenic,” individually or in combination, by existing authoritative bodies, including EPA, CalEPA, International Agency for Research on Cancer (IARC), Organisation for Economic Co-operation and Development (OECD), and the European Community. In light of the absence of evidence of carcinogenic risk for any of these pollutants, and the evidence of an existing threshold below which HCl, HF and Cl
Potential health effects of HCl:
• There are limited studies on the carcinogenic potential of HCl in humans. The occupational data are limited to a couple of studies (Steenland
• Consistent with the human data, chronic inhalation studies in animals have reported no carcinogenic responses after chronic exposure to HCl (Albert et al., 1982; Sellakumar
• Hydrogen chloride has not been demonstrated to be genotoxic. The genotoxicity database consists of two studies showing false positive results potentially associated with low pH in the test system (Morita et al., 1992; Cifone
• Chronic exposure to HCl at concentrations below the current IRIS reference concentration (RfC) are not expected to cause adverse effects.
Potential health effects of HF:
• There are a limited number of studies investigating the carcinogenic potential of HF. These studies are unreliable on the issue of possible carcinogenicity of HF and/or fluorides, in general, because of many confounding factors (
• Chronic exposure at or below the current CalEPA reference exposure level (REL) is not expected to cause adverse effects.
Potential health effects of Cl
• The existing studies of workers in the chemical industry have not found any evidence that Cl
• Chronic bioassays in rodents and long-term studies in non-human primates have shown no evidence for carcinogenicity in respiratory tract as target tissue or other tissues.
• Chronic exposure to Cl
We disagree with the comment that the EPA's proposed HBEL does not provide an ample margin of safety, for the following reasons.
First, the limit is based on the facility in the source category with the highest potential exposure to nearby residents. The HBEL at this single facility reflects a ratio of exposure concentration over the reference value of up to 1 (at an exposure concentration below the RfC is considered to be health protective). As such, exposures will not exceed the established health threshold at this facility. In addition, the exposure estimate used to set the limit is very health protective in that it assumes constant exposure for 70 years. Actual exposures from emissions from this facility are expected to be lower (
Second, the ratios at the other facilities (not the highest facility noted above) from this source category are lower and in most cases significantly lower, with approximately 90 percent of these facilities having a ratio of 0.5 or less, which provides a further increased margin of safety beyond the ample margin of safety established at the facility with the highest potential exposure.
The commenter stated that the EPA is authorized to set risk-based standards only where it has direct evidence of the level at which there are no adverse effects observed and that proceeding with HBEL without a no observed adverse effect level (NOAEL) is unlawful. Another commenter stated the use of health-based standards should only be considered for HAP that have been thoroughly evaluated by the EPA and are contained in the IRIS database with a high level of confidence in the RfC. With respect to HCl, the IRIS confidence levels are “Low” for the inhalation RfC. In “Carcinogenicity Assessment for Lifetime Exposure,” IRIS states, “This substance/agent has not undergone a complete evaluation and determination under the EPA's IRIS program for evidence of human carcinogenic potential.”
The commenter also stated that IARC concluded that “[t]here is inadequate evidence for the carcinogenicity in humans of hydrochloric acid,” that “[t]here is inadequate evidence for the carcinogenicity in experimental animals of hydrochloric acid,” and that HCl “is not classifiable as to its carcinogenicity to humans.”
The commenter stated that there is not a NOAEL and that based on that, the EPA cannot set a HBEL for HCl. The EPA toxicity assessments consider the entire toxicity database for specific chemicals and are conducted following well-established EPA guidance on how to assess potential hazard of a chemical and conduct dose response assessments. These assessments include the derivation of an RfC, which is likely to be without appreciable risk of adverse health effects to the human population (including susceptible subgroups and all life stages) over a lifetime. According to EPA guidelines, RfCs can be derived from a NOAEL, lowest observed adverse effect level (LOAEL) or benchmark dose, with uncertainty factors applied to reflect the limitations of the data used. In particular for HCl, the point of departure for the RfC (15 milligrams per cubic meter (mg/m
As part of the risk analysis conducted to support this rule, the EPA thoroughly evaluated all the available and relevant scientific evidence on HCl (discussed previously in this section) and concluded that there is no evidence that HCl is a carcinogen and that this information is sufficient for this regulatory determination. The 2002
For genetic toxicity, a negative result has been shown in the Ames test. A positive result in a chromosome aberration test using Hamster ovary cells is considered to be an artifact due to the low pH. For carcinogenicity, no pre-neoplastic or neoplastic nasal lesions were observed in a 128-week inhalation study with SD male rats at 10 ppm hydrogen chloride gas. No evidence of treatment related carcinogenicity was observed in other animal studies performed by inhalation, oral or dermal administration. In humans, no association between hydrogen chloride exposure and tumor incidence was observed.
The commenter stated that the EPA used a non-cancer health threshold for HCl based on a chronic inhalation study on rats.
The EPA's RfCs are assigned confidence levels of high, medium and low based on the completeness of the supporting database. High confidence RfCs are considered less likely to change substantially with the collection of additional information, while low confidence RfCs are recognized as being based on less complete data and so may be subject to change if additional data is developed.
We disagree with the comment that without a NOAEL, no established threshold can exist. The EPA toxicity assessments for specific chemicals are conducted using well-established EPA guidance on how to assess potential hazard of chemicals and how to conduct dose response assessments to arrive at a chemical concentration below which we do not expect adverse effects to occur (
The commenter stated that there is no “established” threshold at the RfC for HCl, because the CalEPA has determined a lower and more health-protective value than the RfC. The EPA's chronic inhalation RfC is 0.02 mg/m
The fact that two agencies have determined significantly different “safe” levels, the commenter contended, demonstrates as a matter of law that there is no “established” health threshold for HCl and precludes the EPA from lawfully setting CAA section 112(d)(4) standards for HCl. The commenter stated that the statute requires that a health threshold “has been established” and argued the legislative history indicates Congress intended for CAA section 112(d)(4) limits to be used only where there was a “well-established” level that presents “no risk” of adverse effects and about which there was no “dispute.”
The commenter asserted that by failing to address the CalEPA REL, the EPA contravened its obligation under administrative law to address significant evidence that detracts from the agency's conclusion. The commenter stated that for the EPA to rely solely on the IRIS RfC, the EPA would need to explain why the CalEPA REL is incorrect and why the IRIS RfC reflects the best available science and risk assessment practices, particularly when the IRIS RfC and CalEPA REL thresholds are based on the same science and when the EPA relied upon CalEPA RELs at several other points in its proposal (
Further, we disagree with the comment that there is no established threshold at the RfC because CalEPA developed a reference value at a lower concentration than the RfC. The approaches used by both agencies are similar and assume a threshold below which adverse health effects would not be expected; however, there are some differences between agencies in methods for deriving the estimate for a threshold that may affect the final resulting values. Both agencies use the best available science to support their risk assessments. The EPA has an approach for selecting appropriate health benchmark values and, in general, this approach places greater weight on the EPA derived health benchmarks than those from other agencies. The approach favoring EPA benchmarks (when they exist) has been endorsed by the SAB and ensures use of values most consistent with well-established and scientifically-based EPA science policy.
Specifically for HCl, we selected the IRIS RfC for HCl as the most appropriate chronic noncancer health threshold to use for this rule. In the case of HF, there is not an EPA RfC available and the only chronic reference value from an authoritative source and appropriate for use in this rule is the California REL.
One commenter noted that the EPA failed to identify an established, well-defined health-based threshold, below which HF does not cause cancer, that is based on reliable science and has a high level of certainty. The EPA has stated that “carcinogenicity via inhalation of fluoride is not considered to be likely by most investigators reporting in the existing literature” (79 FR 75641) and that the EPA “has not classified HF for carcinogenicity” (79 FR 75640). The commenter stated that it is possible that HF causes cancer because increased rates of cancer have been observed in workers exposed to a mixture of chemicals that included fluoride
One commenter noted that although the National Air Toxics Assessment (NATA) database does not contain HF,
Four commenters questioned the EPA's reliance on a CalEPA risk assessment, noting that the CalEPA REL is based on a study of adults exposed to HF in the workplace
One commenter stated that the CalEPA REL is based on a study that only examined the increased bone density (skeletal fluorosis) endpoint and noted that CalEPA stated that “[t]he primary uncertainty in the study was the lack of a comprehensive health effects examination.”
Another commenter asserted that the EPA has insufficient data showing exposure to HF at the REL value “presents no risk” of harm to other bodily systems. The commenter noted that HF is a possible reproductive toxin,
The commenter stated the CalEPA REL was developed by CalEPA using an outdated version of CalEPA's Hot Spots Risk Assessment Guidelines (1999) that has been “superseded” by the more recent guidelines released in February 2015.
All of the studies cited by the commenter are from exposure to fluoride and not from inhalation exposures to HF. Neurodevelopmental effects may be relevant to high fluoride exposures, but the existing evidence shows these effects may occur at fluoride exposure levels beyond those that would cause respiratory effects if HF were the sole source of exposure. In the study of Lund (1997),
The EPA also disagrees with the comment that a children's default safety factor of 10 should be added to the CalEPA REL for HF. In response to the 10X factor enacted by Congress in the FQPA (1996)
Regarding the comment that CalEPA's Hot Spots Risk Assessment Guidelines
The commenter's assertion that the NATA database does not contain HF is incorrect; NATA 2005 (cited above by the commenter) does include noncancer risk estimates for HF. The HF cancer risks are not included in NATA because a quantitative cancer analysis for HF does not exist.
One commenter stated that it is possible that Cl
According to the commenter, Congress authorized CAA section 112(d)(4) standards only where a threshold “has been established.” In other words, there must be an already-established threshold for which there is direct evidence that the pollutant presents “no” harm at the threshold level of exposure, and the law requires “well-established” factual evidence.
The commenter stated that the EPA cannot set a health threshold for Cl
Two commenters stated that IRIS contains “no data” on an RfC for chronic inhalation exposure.
One commenter stated that the MRL does not account for the potentially greater susceptibility of children, infants, and fetuses to Cl
Regarding the assertion that the MRL does not take into consideration the potential for greater potential effects in children, in the development of the Toxicological Profile for Chlorine,
In the light of the absence of evidence of carcinogenic risk from Cl
The commenter stated that there may be no safe threshold in the human population for many chemicals and that newer studies show many chemicals increase the risk of various noncancer health effects—such as reproductive harm and neurological effects—at low doses, without any scientifically identifiable threshold.
The commenter stated that, to address the fact that very low levels of non-carcinogen exposures can pose health risks, NAS recommended that cancer and chronic non-cancer risk assessment use the same approach.
The commenter asserted that the EPA ignored the best available, current science showing that pollutants have health effects at low doses in its evaluation of health thresholds for HCl, HF, and Cl
The EPA's conclusion that HCl, HF and Cl
Specifically, none of the compounds discussed here has been classified as carcinogenic or suggestive of the potential to be carcinogenic, individually or in combination by existing authoritative bodies including the EPA, CalEPA, IARC, OECD, and the European Community. In light of the absence of evidence of carcinogenic risk for any of these pollutants, and the evidence of an existing threshold below which HCl, HF and Cl
The commenter noted that the EPA has recognized that MACT standards for HCl in other source categories resulted in reductions in emissions of PM, hydrogen cyanide, and other criteria and HAP pollutants and has relied upon the co-benefits of these reductions as a basis for not setting risk-based standards for those other source categories.
For the past rulemakings in which the EPA considered co-benefits as part of a CAA section 114(d)(4) evaluation, the EPA did not quantify the PM emissions reductions associated with MACT standards (see 79 FR 75641, footnote 27), so a direct comparison of the co-benefits of the BSCP Manufacturing NESHAP and the Clay Ceramics Manufacturing NESHAP with the co-benefits of these other rules for PM is not possible. The only pollutant with quantified emissions reductions in the co-benefits analyses for these other rulemakings was SO
For HCl, the EPA identified chronic benchmark concentrations as described in a 2009 EPA document on RTR risk assessment methodologies.
For HF, the EPA used two chronic benchmark concentrations for plants in the environmental screening analysis. The value of 0.5 μg HF/m
To protect vegetation from adverse effects resulting from HF exposure, the Canadian Council of Ministers of the Environment
The level above which there are demonstrated effects on human health and/
High concentrations of HF in the air have also been linked to fluorosis in livestock. However, the HF concentrations at which fluorosis in livestock occur are higher than those at which plant damage begins. Therefore, the benchmarks for plants are protective of both plants and livestock.
For Clay Ceramics Manufacturing facilities, the environmental risk screen indicated that the area-weighted average modeled concentration of HCl around each facility (
For BSCP Manufacturing facilities, the environmental risk screen indicated that the area-weighted average modeled concentrations of HCl and HF around each facility (
The EPA did not conduct an assessment of the potential for emissions of HCl to cause acidification in close proximity to the sources in this category. Acid deposition, more commonly known as acid rain, primarily occurs when emissions of SO
Another commenter stated that the EPA made no adjustments to the HBEL it selected to account for the potential for harm from exposures other than to the amounts of HCl, HF, and Cl
If the ambient concentration of a particular pollutant is already at or near the health threshold, the commenter asserted that an additional source of that pollutant or another pollutant with a biologically similar endpoint can push the exposure over the threshold, even if the additional source emits the pollutant at low concentrations. The total risk that is unacceptable for the most-exposed person in each source category must be reduced to consider the cumulative effect of these additional exposures and to create a total risk from all regulated source categories. The commenter stated that EPA's assessment of cumulative risks posed by HCl, HF, and Cl
The commenter stated that information in the EPA's own databases demonstrates that BSCP and clay ceramics facilities are not predominantly located in rural, sparsely populated areas, as the EPA assumes. Many of the BSCP facilities are located in urban areas, including Boral Bricks in Terre Haute, Indiana; Hanson Brick in Columbia, South Carolina; General Shale Brick in Denver, Colorado; and Cherokee Brick & Tile in Macon, Georgia.
The commenter stated that the EPA's assessment of cumulative risks does not meet generally accepted good practices in risk assessment. The SAB recommended in May 2010 that the EPA incorporate “aggregate and cumulative risks, including background concentrations and contributions from other sources in the area” into its risk analysis.
Finally, the commenter stated that this proposal is contrary to the EPA's recent conclusion in its regulation of power plant electric generating units that “the potential cumulative public health and environmental effects of acid gas emissions” did not allow for CAA section 112(d)(4) standards.
Although the EPA did not model the other nearby facilities, the EPA did compare the location of all sources emitting acid gases with the locations of the BSCP and clay ceramics facilities. The EPA found that only four facilities emitted acid gases within 1 kilometer of any BSCP facility. Beyond 1 kilometer, we would expect very little coincidental impacts from multiple low level sources emitting the same pollutants. The largest of these facilities emitted less than 12 tpy of HCl-equivalent emissions, or less than 5 percent of the emissions limit. The estimated HI for this BSCP facility was 0.6, so an increase of 5 percent in emissions would result in an increase in HI of at most 5 percent and, thus, not increase the HI above a value of 1. There are no other sources emitting acid gases within 1 kilometer of any clay ceramics facility.
Also, for the BSCP plant with the highest estimated HI, there are no other acid gas emissions indicated in the NEI within 5 kilometers of the facility. For the clay ceramics plant with the highest estimated HI, there are no other acid gas emissions indicated in the NEI within 10 kilometers of the facility. Thus, we would not expect emissions of acid gases from other sources to contribute significantly at the receptors where the maximum HI occurs due to BSCP or clay ceramic emissions, and the HI at these receptors would not exceed 1.
The meteorological data we used were obtained from the Automated Surface Observing Systems (ASOS) program, which is a joint effort of the National Weather Service (NWS), the Federal Aviation Administration (FAA), and the Department of Defense (DOD). The ASOS serves as the nation's primary surface weather observing network and is designed to support weather forecast activities and aviation operations and, at the same time, support the needs of the meteorological, hydrological, and climatological research communities. With the largest and most modern complement of weather sensors, ASOS has significantly expanded the amount of available meteorological information. The ASOS works non-stop, updating observations every minute, 24 hours a day, every day of the year. The ASOS is installed at more than 900 airports across the country, and our meteorological library for the year 2011 includes all of these that are without a significant number of missing hours (824 stations).
One commenter stated that no effort was made to move receptor points closer to the facility to assess chronic or cancer risk, even in those instances where local residents live nearer to a facility than the geographic centroid of the census block. This conflicts with the recommendation of the SAB, which has urged the EPA to consider “specific locations of residences.”
Another commenter agreed and stated that the EPA can use HEM-3 to identify the maximum individual risk at any point in a census block that is within a 50-kilometer radius from the center of the modeled facility. The commenter recommended the EPA not use the predicted chronic exposures at the census block centroid as a surrogate for the exposure concentrations for all people living in that block; instead, the EPA should use the maximum individual risk in its risk assessments, irrespective of its location in the census block.
Census blocks are the finest resolution available as part of the nationwide population data (as developed by the U.S. Census Bureau); each is typically comprised of approximately 50 people, or about 20 households. In the EPA risk assessments, the geographic centroid of each census block containing at least one person is used to represent the location where all the people in that census block live. The census block centroid with the highest estimated exposure then becomes the location of maximum exposure, and the entire population of that census block is assumed to experience the maximum individual risk. In some cases, because actual residence locations may be closer to or farther from facility emission points, this may result in an overestimate or underestimate of the actual annual concentrations (although there is no systematic bias for average levels). Given the relatively small dimensions of census blocks in densely populated areas, there is little uncertainty introduced by using the census block centroids in lieu of actual residence locations. There is the potential for more uncertainty when census blocks are larger, although there is still no systematic bias. The EPA concludes that the most appropriate locations at which to estimate chronic exposures and risks are the census block centroids because: (1) Census blocks are the finest resolution available in the national census data, (2) facility fencelines do not usually represent locations where chronic exposures are likely and (3) there is no bias introduced into the estimate of the MIR by using census block centroid locations. In addition, in its peer review of the methodologies used to estimate risks as part of the RTR rulemaking efforts, the EPA's SAB endorsed this approach.
In addition to the approach described above, the EPA recognizes that where a census block centroid is located on industrial property or is large and the centroid is less likely to be representative of the block's residential locations, the block centroid may not be the appropriate surrogate. For BSCP facilities, in cases where a census block centroid was within 300 meters of any emission source (and therefore possibly on facility property), we viewed aerial images of the facility to determine whether the block centroid was likely located on facility property. Likewise, we examined aerial images of all large census blocks within 1 kilometer of any emission source. If the block centroid did not represent the residential locations within that block, we relocated it to better represent them and/or we added additional receptors for residences nearer to the facility than the centroid. For this source category, we relocated 14 census blocks that appeared to be on facility property or were otherwise not representative of the population within the block, and we modeled an additional 15 receptors in cases where the single block centroid was inadequate to characterize the population within the census blocks.
The commenter stated that since the EPA based the ratio for comparing HF and Cl
The commenter stated that CAA section 112(d)(2) mandates that the EPA “shall require the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section.” The commenter asserted that it is unlawful for the EPA not to set an emissions limit for a CAA section 112-listed pollutant (
The commenter also stated that the EPA's approach raises questions about whether the use of “HCl-equivalents” results in limits that protect people against all of a pollutant's health risks with “an ample margin of safety,” as required by CAA section 112(d)(4). The commenter argued that because pollutants cause different adverse health effects, they are not “equivalent” pollutants that cause “equivalent” health effects at “equivalent” concentrations of exposure. The commenter further argued the RfC for HCl is based on a study of respiratory toxicity and is meant to protect individuals against respiratory harms from chronic exposures, while the REL used for HF is based on a study of skeletal fluorosis (increased bone density) and is meant to protect individuals against skeletal harm from chronic exposures.
The commenter also noted that the EPA does not claim to be using HCl as a surrogate for HF or Cl
Another commenter expressed concern the HCl-equivalent emissions limit could mask exposures or emissions of concern for the most toxic gas because the comparison would be dominated by a higher concentration pertinent to the less toxic gases. The commenter asserted that there is no analysis that justifies this combined metric and noted it would be more justifiable if the substances were in the same order of magnitude for potential potency. The commenter recommended that the EPA consider whether these gases could contribute to the acid component of ambient air that is thought to potentially contribute to cancer and other effects because these impacts appear not to have been considered by the EPA.
Conversely, another commenter contended that the EPA's proposed HBEL under CAA section 112(d)(4) does not include “an ample margin of safety.” The commenter disagreed with the approach the EPA used to determine the CAA section 112(d)(4) limits. Specifically, the commenter stated that by setting the limits at precisely the same level as the threshold value, the EPA proposed to allow plants to emit acid gas pollution that would expose people to amounts of pollution that reach threshold levels.
The commenter stated that these limits do not include any “margin of safety,” let alone an “ample” one, as the EPA is required to include for CAA section 112(d)(4) standards. The commenter expressed concern that under the EPA's approach, even the slightest uncertainty in the EPA's estimates or low background levels of pollution can place health at risk because plants can emit at the health threshold. The commenter stated that the EPA did not explain how these limits would protect public health with “an ample margin of safety.”
The commenter noted that a TOSHI (which is the sum of the HQs) of “one” does not necessarily represent a safe level of exposure. The commenter asserted the EPA characterizes a TOSHI or HQ of “one” or less as exposures that “are not likely to cause adverse health effects” (79 FR 75643), but did not provide any explanation why this level would meet the statutory standard. According to the commenter, Congress intended the standard to be set at a level at which there is “no risk” of “adverse health effects,” plus “an ample margin of safety (and not considering cost).”
The commenter also expressed concern that the EPA did not take steps to adjust the limits to reflect the uncertainties regarding health exposures and effects. The EPA has factored in uncertainties and vulnerability factors in other rulemakings, such as when determining a Target Margin of Exposure under the FQPA, where the EPA considered whether risks below the Target Margin of Exposure warranted increased scrutiny and changes to allowable exposures.
The commenter further stated that the “ample margin of safety” language in CAA section 112(d)(4) requires that any standard that is set under this authority must be sufficient to protect against significant unforeseen consequences.
The commenter stated that the EPA has used emissions multipliers to scale up average hourly emissions in air dispersion modeling for other risk assessments.
The commenter also stated that the EPA's calculation of 1-hour emissions assumed plants are operating (and generating emissions) 24 hours per day, 365 days per year. The commenter noted that averaging hourly emissions over the full calendar year produces lower hourly emissions than if the EPA had used each plant's actual operating hours. The EPA has information about each plant's operating hours and these data show many units are not operating over the full calendar year. By calculating the 1-hour emissions based on 8,760 operating hours, the commenter asserted the EPA underestimated the risks of acute exposures over shorter spans of time.
The commenter stated that because the EPA used short-term emissions that are neither conservative nor realistic, the EPA cannot conclude the standard assures “an ample margin of safety.” The commenter stated that in two other recent rulemakings, the EPA found information on short-term HCl emissions was insufficient to allow the EPA to evaluate “whether a chronic health-based emission standard for HCl would ensure that acute exposures will not pose any health concerns.” (75 FR 32031; 76 FR 25050). In these rulemakings, the commenter stated, the EPA did not proceed with risk-based standards due to the lack of this information. The commenter stated that the EPA is incorrectly proceeding with the proposed health-based standards without accounting for or quantifying peak short-term emissions.
The EPA concludes the risk analysis and subsequent standard meet an “ample margin of safety” in accordance with the CAA. The proposed HBEL for the entire source category is based on an emissions level corresponding to a maximum noncancer HI of one at the highest impacted facility. All other facilities would have a lower risk than the highest risk facility. Further, as the standard is based on a 1-hour emission limit, in determining chronic impacts, the analysis conservatively assumes that each plant emits at the 1-hour HBEL for an entire year (8,760 hours).
The commenter stated that for HF, the EPA's evaluation identified numerous plants at which there were potential acute health risks. Specifically, the EPA found 23 BSCP facilities exceeded the HQ value for HF, with nearly half of those facilities exceeding the value by four- or five-fold. For the clay ceramics category, the EPA found that eight facilities exceeded the HQ value for HF. The additional analysis the EPA performed to determine whether these facilities posed “significant acute risks” did not rule out the possibility of such “significant acute risks.” For these facilities, the EPA focused its analysis on maximum offsite HQ values; however, the commenter noted that many of the maximum offsite HQ values exceed one, thereby indicating the potential for “significant acute risks” remained. The commenter asserted that the EPA provided no support for why values above one means there is no potential for “significant acute risks.”
The commenter disagreed with the EPA's assertion that there is no potential for “significant acute risks” because the risk assessment assumes there is a person present at the location and time where the maximum HQ value occurs and stated that relaxing conservative assumptions about exposure in individual instances is arbitrary and defeats the purpose of the evaluation. The EPA cannot pretend that the person is not present and ignore the potential for harm. The EPA's statement that a facility is not likely to emit only HF similarly provides no assurance of safety. According to the commenter, the EPA relaxed an assumption in the model because the model predicted an outcome the EPA did not like. The
The commenter stated that the EPA's use of acute exposure guideline levels (AEGLs) and emergency response planning guidelines (ERPGs) to assess acute risks cannot assure that exposure presents “no risk” of health effects at those concentrations. The AEGL and ERPG values were created for emergency exposure scenarios. The commenter stated that levels defined for “once-in-a-lifetime, short-term exposures” and “emergency” chemical releases or accidents are not appropriate for measuring acute exposure risk. According to the SAB, indicated “AEGL-2 and ERPG-2 values should never be used in residual risk assessments because they represent levels that if exceeded could cause serious or irreversible health effects.”
The commenter stated that because the AEGL and ERPG numbers would underestimate risk to the maximum exposed individual, AEGL and ERPG values do not indicate “safe” thresholds that protect health with “an ample margin of safety.” For these reasons, the commenter contends AEGL and ERPG values should not be used to set CAA section 112(d)(4) standards.
For HCl and Cl
Regarding the use of AEGL and ERPG values, the EPA does not rely exclusively upon these values for assessment of acute exposures. Rather, the EPA's approach is to consider various acute health effect reference values, including the California REL, in assessing the potential for risks from acute exposures. To better characterize the potential health risks associated with estimated acute exposures to HAP, and in response to a key recommendation from the SAB's peer review of the EPA's RTR risk assessment methodologies, we generally examine a wider range of available acute health metrics (
The commenter also stated that emissions during startup and shutdown are expected to be uncontrolled, because the EPA did not propose to require that BSCP and clay ceramics plants use APCD or other methods to reduce emissions (such as mandating the use of clean fuels) during these periods. The proposed work practice standards for periodic and shuttle kilns do not require control technology and, according to the commenter, are not anticipated to reduce emissions.
Finally, the commenter stated that the only reason startup and shutdown periods and periodic and shuttle kilns are not subject to the proposed CAA section 112(d)(4) limits is because the EPA exempted them from CAA section 112(d). The commenter stated that it is arbitrary to exclude those emissions from the health analysis solely because the EPA proposed to regulate those sources of emissions under a different subsection of the CAA. The commenter argued all exposures contribute to the risk of harm, regardless of whether they are CAA section 112(d)-regulated emissions or section CAA 112(h)-regulated emissions.
The owner or operator of each kiln will be required to determine the startup production rate for the kiln. For kilns with an APCD, the owner or operator will determine the minimum inlet temperature for the APCD. For kilns that, through compliance testing once the compliance date has been reached, have shown they are emitting under the emission limits and thus do not have an APCD, the owner or operator will determine the product-specific kiln temperature profile that must be achieved before the kiln can reach full production. The startup standards will be tied to the startup production rate never being exceeded until the kiln reaches the minimum inlet temperature for the APCD or the product-specific kiln temperature profile, whichever is applicable. During shutdown, once the kiln falls below the minimum inlet temperature for the APCD or the product-specific kiln temperature profile, whichever is applicable, no additional product can be introduced. These temperature limits will be required to be included in the facility's records and kept on site. Thus, for periods of startup and shutdown, the HBEL set for HCl, HF, and Cl
In the case of sanitaryware shuttle kilns, the commenter is mistaken that we did not mandate the use of clean fuels. The rule does limit the fuels used to natural gas or equivalent, and also outlines work practice standards relative to temperature cycles and maintenance procedures designed to minimize HAP emissions (see Table 3 to subpart KKKKK). The use of clean fuels applies for all times the kiln is running, not just startup and shutdown. Therefore, the commenter is incorrect that we are not requiring the use of clean fuels for startup and shutdown relative to the operation of shuttle kilns.
The EPA also disagrees that just because the proposed work practice standards for periodic and shuttle kilns do not reflect the use of any control technology, they are not anticipated to reduce emissions. As the commenter has stated elsewhere, control technologies are not the only means of limiting emissions. Control of parameters such as fuel, operating temperature, combustion conditions, and throughput are also effective means of limiting emissions, and these are the types of parameters the EPA considered when finalizing the work practice standards for periodic and shuttle kilns.
As discussed in the proposal at 79 FR 75662, CAA section 112(h)(1) states that the Administrator may prescribe a work practice standard or other requirements, consistent with the provisions of CAA sections 112(d) or (f), in those cases where, in the judgment of the Administrator, it is not feasible to enforce an emission standard. Section 112(h)(2)(B) of the CAA further defines the term “not feasible” in this context to apply when “the application of measurement technology to a particular class of sources is not practicable due to technological and economic limitations,” which is the case here. There are fewer BSCP periodic kilns and first-fire sanitaryware shuttle kilns compared to tunnel kilns, and they tend to be low-emitting sources compared to tunnel kilns,
The commenter stated that relevant chronic exposures include exposures from exceedances and violations and noted that many exceedances, such as those from malfunctions and upsets, are likely to contribute significant emissions that can elevate an individual's total exposures over time. The commenter also stated that the EPA explains malfunction events can be significantly higher than emissions at any other time of source operation (79 FR 75626). The commenter stated that these emissions pose much higher short-term risks and can accumulate and combine to increase public health impacts and risk and that guarding against the health risks of releases of large amounts of HF (for example) must be built into the HBEL through the margin of safety. The commenter stated that HF exhibits characteristics in some circumstances that can make it uniquely hazardous over large areas. For example, HF molecules may associate with one another (
The commenter stated that, by not accounting for exposures from exceedances, the EPA assumed that such exceedances will be zero and built in no additional protections in case exceedances do occur. The commenter claimed that there is no factual basis for assuming that 100 percent of BSCP and clay ceramics facilities will comply with each of the relevant emissions limits 100 percent of the time. Over the long term and across the population of regulated facilities, the commenter noted that it is predictable that a number of exceedances will occur at facilities. The commenter stated it is unlawful to ignore emissions and the resulting health risks from those exceedances and argued the additional risk from exceedances should not be ignored in risk assessments.
The commenter stated that EPA regularly uses statistical methods and probability factors to assess health risk due to exceedances and to set clean air standards, and the EPA has data available to calculate representative factors to assess the health risk from
The commenter stated that it is irrelevant that exceedances are a result of a failure to comply with the law when the EPA is setting CAA section 112(d)(4) standards, which must be set at a level that protects health. It does not matter to a person whether the pollution he or she is breathing is a result of a permitted or unpermitted release; the commenter argued the EPA cannot turn a blind eye to the reality that compliance with its standards is not perfect.
The commenter is correct that the EPA did not include malfunctions and upsets emissions in setting emissions limits. As noted in the preamble to the proposed rule (79 FR 75626), malfunctions “are, by definition sudden, infrequent and not reasonably preventable failures of emissions control, process or monitoring equipment.” The preamble also stated that “accounting for malfunctions in setting emission standards would be difficult, if not impossible, given the myriad different types of malfunctions that can occur across all sources in the category and given the difficulties associated with predicting or accounting for the frequency, degree and duration of various malfunctions that might occur. For these reasons, the performance of units that are malfunctioning is not `reasonably' foreseeable.” It should also be noted that sources cannot conduct performance tests during periods of malfunction (40 CFR 63.8445(e) and 40 CFR 63.8595(d)) and there are no continuous emissions monitoring systems (CEMS) in place in the BSCP industry.
The EPA disagrees that it is required to evaluate the ample margin of safety provided by a CAA section 112(d)(4) standard based on the level of emissions that could occur during an exceedance of the standard caused by a malfunction or any other cause. When the EPA establishes a standard under CAA section 112(d)(4), the EPA evaluates the ample margin of safety based on what sources will emit when they are meeting the standard (which applies at all times including periods of malfunction) and does
Regarding the comment that the standard is not health protective for emissions of HF, the proposed rule determined the HCl equivalent emissions for HF by the ratio of the RfC value for each pollutant, such that a 250 tpy emission of HCl is equivalent to 175 tpy emissions of HF. By performing a risk analysis for each facility/kiln, the EPA demonstrated that these emissions limits are protective of both chronic and acute risks.
Regarding the comment that HF exhibits release characteristics that may make it uniquely hazardous over large areas, the EPA notes that the commenter did not include data or information supporting their assertion that plumes of acid gases from BSCP facilities could become heavier than air. The commenter's example case of the formation of dense clouds of acid gases is from studies performed on the vaporization of liquefied gaseous fuels from spills, and the commenter did not explain how this scenario is relevant to the emission of acid gases formed in BSCP kilns. In the absence of evidence suggesting that clouds of dense gases are formed from BSCP facilities, and without a suggested alternate modeling methodology, the EPA used its preferred model AERMOD for dispersion for BSCP facilities.
The EPA also notes that the HBEL was not established using emissions data from stack tests. Therefore, there was no need to account for variability in setting the HBEL as was done for the Hg and non-Hg HAP metals standards. Instead, the standard was established at a conservative level to ensure that the HQs remain below one for all facilities. The EPA agrees that there would be variability in the test results used to demonstrate compliance with the rule, but as already noted in this response, short-term emissions variability would have to be high for the estimated HQs to approach a value of one. In addition,
In addition, the commenter suggested that the EPA should require facilities to submit monitoring plans, data, and corrective action plans for agency review and public comment. These requirements would ensure concerned community members have the ability to review and recommend improvements to monitoring plans before they are implemented and would enable the EPA to consider community concerns when deciding whether to approve a plan.
One commenter stated that the DC Circuit held that the BSCP Manufacturing NESHAP published on May 16, 2003 (68 FR 26690) violated the CAA in a number of ways (
The commenter noted that the EPA is once again excluding best performing sources from its floor analysis and basing floors on a group of kilns using the EPA's preferred control technologies, in contravention of the holding of
The EPA has amended the approach to developing PM surrogate MACT floors for reasons explained in section IV.A.1 of this preamble, so these comments are now moot. However, the EPA still believes the approach to identify the best performing sources has merit. When the EPA has data on every single controlled source in the category, and these data support that these sources are the best performing, then basing the MACT floor on the top 12 percent of the total number of sources is appropriate.
The commenter stated the “equivalent” limits the EPA proposed are not “equivalent” and Congress did not give the EPA the authority to set multiple limits and allow sources to comply with whichever limit they choose. The commenter stated the EPA's use of different measures of performance to identify the top sources on the one hand and to evaluate their performance on the other is inconsistent, irrational, and unexplained; the same metric should
Another commenter supported the EPA's inclusion of multiple formats for both PM/non-Hg HAP metals and Hg. The commenter stated that the inclusion of each of these formats, as well as the inclusion of small and large kiln subcategories, provides needed flexibility to numerous BSCP facilities, including a large number of small businesses, to find that standard that best suits their operations while still ensuring that the CAA requirements are met. The commenter asserted that the inclusion of three alternate compliance formats is so critical to the development of this standard that the EPA must re-propose this rule if it maintains numeric limits but deletes any of these alternative formats for the final rule.
Multiple commenters specifically stated that the requirement for an exhaust temperature of 400 °F at startup is not workable because the kiln exhaust temperature in some kilns never reaches 400 °F. Commenters also noted that kilns must have product at startup. Therefore, commenters requested that the startup provisions apply to the introduction, or charging, of new brick or structural clay product through a kiln and not impact the initial staging of kiln cars in a kiln before start-up. Commenters suggested revisions to the proposed language to “not put any bricks into the kiln” below specified temperatures.
Multiple commenters agreed with the language that requires a kiln to vent to an APCD before the exhaust gas reaches 400 °F, because it can vent at any time up to that temperature. Multiple commenters stated that for a controlled kiln, it is acceptable to require that no new product is allowed to be introduced to the controlled kiln until the kiln is vented to an APCD. One commenter stated that a feasible work practice standard would be for the exhaust gases to be vented through the APCD during the startup process, with the reagent feed started on an intermittent basis during this period and then brought up to full feed rate once the exhaust temperature has reached the normal operating temperature range.
A few commenters also requested specific revisions to the production requirements for periods of shutdown. One commenter stated that during shutdown, a kiln operator would not be pushing any cars in the kiln after reaching a range of 250 to 300 °F in the exhaust stack (depending on the type of kiln and its operating parameters). The commenter asked that a minimum operating range be allowed during a shutdown cycle. Another commenter noted that a limitation for a kiln to cease charging in new product before a kiln stops venting to an APCD may be a reasonable alternative to temperature requirements.
One commenter stated that the EPA should not devote resources to finalizing these regulations when those regulations would apply to no one, and, thus, will have no environmental benefits. The commenter stated that it is the EPA's duty to responsibly steward the public resources with which it has been entrusted to use in fulfillment of its mission, and using these resources to issue regulations that will regulate no one fails to satisfy that responsibility. Issuing such regulations is expensive for the regulated community and has the real potential to create unintended, inaccurate impressions of the industry, its emissions and its products. It serves no public purpose, and will impose short and long term costs on the EPA, and long term costs on delegated states as an unfunded mandate and on the tile manufacturing industry, 79 FR 75671 (Dec. 18, 2014).
The commenter argued that, because the EPA's promulgation of standards for the ceramic tile industry is not authorized by the CAA, finalizing such standards would violate Articles I and II of the U.S. Constitution because it is an attempt by the EPA to rewrite portions of the CAA when the power to enact laws is reserved to Congress. The commenter stated that Congress provided clear instructions to the EPA, in the unambiguous numerical definition of “major source,” as to which industry categories or subcategories could be regulated by major source NESHAP standards. The commenter noted that the Supreme Court very recently stated: “An agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.”
The commenter argued that the
The commenter argued that the proposed NESHAP would, if finalized as proposed, be arbitrary and capricious because the proposed NESHAP is based on hypothetical or imaginary manufacturing and air emissions control strategies, flawed data from an invalidated stack test method, and on statistically created emissions data. The EPA even proposed in places not to use actual emissions data.
According to the commenter, the EPA's proposal, if finalized, would create an economic hurdle so high that no one in the industry would expand their business to the point of becoming a NESHAP major source. Further, a substantial number of these entities meet the definition of a “small business” as defined by the U.S. Small Business Administration (SBA). The result of this regulation, if finalized, would be to hand non-market-based economic advantages to foreign producers to grow their presence in the U.S. market by importing their competing ceramic tile. Financing of capital projects will be adversely affected by the costs imposed by the NESHAP, further raising the economic hurdle. Major source domestic manufacturing capacity will not be built, and the jobs and tax base that go along with that capacity will not be created.
In interpreting the relevant provisions here, the EPA is mindful of the recent and longstanding instructions from the Supreme Court that statutory provisions must be read to further rather than undermine Congress's statutory intent.
Further, the issue of whether there are major sources in the ceramic tile subcategories is not as clear as the commenters presume. Even if, as the commenters contend, all of the existing major sources in these subcategories have successfully completed the process of becoming synthetic area sources, then these sources are not subject to the requirements imposed on major sources but that does not equate to a conclusion that they are no longer major sources in any respect. The EPA's view is that synthetic area sources, though subject to area source requirements rather than major source requirements, are still major sources in certain respects. For example, synthetic area sources are considered to be major sources when the EPA identifies the best performing major sources as part of a MACT floor calculation under CAA section 112(d). Further, CAA section 112(a)(1) defines a major source as “any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants.” The reference to a source's “potential to emit considering controls” in this definition allows the interpretation that a source's potential to emit before and after controls is relevant, such that synthetic area sources may be considered within the meaning of this definition.
With respect to the commenter's argument that CAA section 112 does not authorize “just in case” regulation, that is both not correct and off point. First, CAA section 112 clearly provides that the EPA will set standards for new sources in the listed categories and subcategories notwithstanding that the EPA can never know whether there will actually be any new sources. As required under CAA section 112, the EPA establishes new source standards “just in case” (to use commenter's phrasing) new sources come into existence. Second, as discussed above, it is reasonable for the EPA to promulgate major source standards where, as here, there are synthetic area sources that could revert to major sources just in case that happens.
With respect to the commenters' argument that it is a poor use of agency resources for the EPA to finalize standards for the ceramic tile subcategories, the EPA has considered whether it is better to complete the current rulemaking with respect to the ceramic tile subcategories (and have them in place in the event that there are new major sources or a synthetic area source reverts to major source status) or to take no action now and re-do this rulemaking with respect to these subcategories in the event that there are major sources in the future. The EPA's conclusion is that, having gotten this far along in the rulemaking process, it is a better use of agency resources to finalize requirements for the ceramic tile subcategories now. Given the options, finalizing these requirements in this rulemaking requires only a modest amount of additional resources, and is a much more efficient use of agency resources than restarting and repeating the rulemaking process at some point in the future. Even if one considers that there may not be any major sources that become subject to these requirements and that such a rulemaking might not ever be done, the EPA's judgment is still that it is more efficient and a more cost-effective use of agency resources to finalize these requirements now. Finally, on the issue of how likely it is that major sources will be built in the future, the EPA notes that the commenters' own arguments suggest they will be. Specifically, the commenters stated that having a major source standard in place will dissuade companies from expanding small facilities into major sources and will impede financing for new major sources. The premise of such a comment is that, in the absence of a standard, there will be such expansions and new major sources.
The document “National Emission Standards for Hazardous Air Pollutants for Clay Ceramics Manufacturing: Background Information for Final Rule—Summary of Public Comments and Responses” in Docket ID No. EPA-HQ-OAR-2013-0290 addresses additional comments on this topic.
The commenter noted that, when the EPA issued the information collection request (ICR) for clay ceramics emissions test data in 2010, the EPA required that Kohler make operational that wet scrubber for emissions testing of that tunnel kiln, even though the APCD was not listed in any permit nor required under any rule and had not been operated in 17 months. Initially, Kohler agreed to test the kiln as an existing source per operational requirements in the facility's air permit (
The commenter acknowledged that the EPA has the authority require operation of any permitted source for emissions testing under rulemaking and ICR protocol. The commenter agreed with the EPA that the “kiln” in question is an existing source but disagreed that the non-operating wet scrubber qualifies as part of an existing source. The commenter contended that the EPA is arbitrarily penalizing Kohler for not spending the money to demolish and remove the wet scrubber back in 2009 when it was removed from the facility's air permit. The commenter asserted that the test data from the wet scrubber are not representative of any existing source and were not actually achieved in practice over time. Therefore, using the test data in the MACT floor analysis is inconsistent with the EPA's expressed intent to determine MACT floors for existing sources based on the average emissions actually achieved in practice by the best performing sources with consideration for variability in emissions over time. The commenter asserted that all emissions data from the wet scrubber should be excluded from the existing source data pool for MACT floor analysis, and the existing source floors should be recalculated for the remaining existing sources.
For both new and existing PM MACT floors, the final limit was unaffected by use of these data, since the data from the APCD was not ranked in the top five sources with data.
For both new and existing Hg MACT floors, the data from the APCD were not ranked because the data were invalidated. The data were removed from the dataset because of errors in the analytical procedures surrounding the digestion process as dictated by Method 29. See Section 4.1: Analytical discrepancy of the Test Report “Kohler Co., Spartanburg, SC: Tunnel Kilns and Glaze Spray Booths 08/11-17/2010 Stack Test,” Docket Item No. EPA-HQ-OAR-2013-0290-0069.
For dioxin/furan, the data from the APCD are in the top five but is not the best performing unit based on the dioxin/furan ng/kg ranking. (Note the units of measure for dioxin/furan ranking have changed from the proposed ng/dscm at 7-percent O
The production-based dioxin/furan limits are provided in lieu of the proposed concentration limits. The compliance flexibility provided to the BSCP Manufacturing source category (including alternative compliance options for PM and Hg) was solely related to concerns under the Small Business Regulatory Enforcement Fairness Act (SBREFA), specifically reducing the regulatory burden of the numerous small entities in the BSCP category. There are no small businesses expected to be subject to the Clay Ceramics Manufacturing NESHAP, so the EPA determined that no additional compliance flexibility was necessary or warranted for the Clay Ceramics Manufacturing source category.
The commenter also challenged the EPA's startup and shutdown proposal for spray dryers relative to dioxins/furans. The input to the spray dryer experiences no more than 212 °F because the operational purpose of the spray dryer is to cause the excess moisture suspended or attached to the ball clay matrix to evaporate. If any spray dryer operating temperature is relevant to the EPA's concern about temperatures in a spray dryer conducive to dioxin/furan formation, this is the correct focus.
For ceramic tile floor tile and wall tile roller kilns, the commenter stated that the proposed temperature requirements for startup and shutdown reflect good kiln production practices; therefore, the proposed startup and shutdown standards are unnecessary.
The commenter noted that the standards are based only on data from the BSCP subcategory, and the proposed temperatures are not appropriate for all sources. For example, ceramic tile dryers uniformly operate below 400 °F, so product could never be introduced to a tile dryer. The commenter also noted that the startup provisions require startup of APCD at 400 °F. However, ceramic tile dryers do not have APCD because they burn only natural gas, their normal operating temperature is less than 400 °F, and their resulting emissions are minimal. For these reasons, the proposal effectively constitutes a ban on the operation of tile dryers. If tile dryers are not an available manufacturing process, ceramic tile manufacturing as it is currently conducted in the United States would effectively cease at major sources. The commenter stated that the EPA lacks the legal authority to implement a de facto shut down of major sources, or to bar the possibility of the proposal of a major source, in this industry.
For all the above reasons, the commenter asserted that the EPA must withdraw the startup and shutdown proposal from any final NESHAP for this subcategory. The commenter contended that, as proposed, these standards are arbitrary and capricious.
The commenter is correct that the specific startup and shutdown work practice standards proposed were based on information from the BSCP industry. In absence of any data on specific startup and shutdown procedures from the clay ceramics CAA section 114 survey, the EPA used the only data available for a similar industry. The EPA has not received any additional information from clay ceramics manufacturers on specific procedures, and in light of that lack of data, the EPA maintains that the less prescriptive startup and shutdown work practices being finalized for the BSCP industry are appropriate for the clay ceramics industry. First, one of the commenter's main points is that the specific temperatures that were proposed are not appropriate for all the types of units to which the standards were proposed to apply, which is consistent with comments received on the BSCP proposal. Second, the commenter did note that the proposed standards reflect good kiln production practices for one type of process unit for which the specific temperature was appropriate. Therefore, the EPA is finalizing work practice standards that are based on best practices but are less prescriptive than the proposed standards.
As a final note, the EPA is clarifying in this response that the startup and shutdown standards are not intended to minimize only emissions of dioxins/furans. Instead, the standards are intended to minimize emissions of all pollutants by limiting the amount of throughput being processed before the unit reaches full production and limiting the amount of time the exhaust is not being routed to the APCD, if applicable. In addition, the proposed startup and shutdown work practice requirements did not require the use of an APCD, nor do the final standards. The standards only specify the requirements for routing exhaust to an APCD if one is present. The EPA has reviewed the language in the final rule to ensure the standards are clear.
Table 8 of this preamble illustrates the costs and emissions reductions for existing sources under the final BSCP Manufacturing NESHAP and final Clay Ceramics Manufacturing NESHAP. The
The nationwide capital and annual costs of the APCD, testing, and monitoring needed to comply with the final BSCP Manufacturing NESHAP are expected to total $64.6 million and $24.6 million, respectively (2011 dollars). The nationwide HAP emissions reductions achieved under the final BSCP Manufacturing NESHAP are expected to total 375 tpy. The methodology used to estimate the nationwide costs and emissions reductions of the final BSCP Manufacturing NESHAP is presented in the technical memoranda titled “Development of Cost and Emission Reduction Impacts for the Final BSCP Manufacturing NESHAP” and “Monitoring and Testing Requirements and Costs for the Final BSCP Manufacturing NESHAP” in Docket ID No. EPA-HQ-OAR-2013-0291.
It is anticipated that all sanitaryware emission points will meet the MACT floor emission limits in the final Clay Ceramics Manufacturing NESHAP, so no emission control costs or emissions reductions are expected for these sources. However, these facilities are expected to incur $92,400 annually in monitoring and testing costs to demonstrate compliance with the final Clay Ceramics Manufacturing NESHAP. These costs are documented in the technical memorandum titled, “Monitoring and Testing Requirements and Costs for the Final Clay Ceramics Manufacturing NESHAP” in Docket ID No. EPA-HQ-OAR-2013-0290.
There are no major sources producing ceramic floor tile or ceramic wall tile. The five facilities that were major sources at the time of the 2008 and 2010 EPA surveys have already taken the necessary steps to become synthetic area sources. Consequently, none of the known tile facilities will be subject to the provisions of the Clay Ceramics Manufacturing NESHAP, which means that no costs or emissions reductions are expected for tile affected sources under the final Clay Ceramics Manufacturing NESHAP.
Table 9 of this preamble illustrates the secondary impacts for existing sources under the BSCP Manufacturing NESHAP and Clay Ceramics Manufacturing NESHAP.
The relevant secondary impacts that were evaluated for the BSCP Manufacturing NESHAP and Clay Ceramics Manufacturing NESHAP include secondary air emissions, energy impacts and solid waste impacts. Indirect or secondary air emissions are impacts that result from the increased electricity usage associated with the operation of APCD to meet the promulgated limits (
Under the final BSCP Manufacturing NESHAP, the nationwide secondary emissions of the criteria pollutants PM, CO, NO
As noted in the previous section, it is anticipated that all sanitaryware emission points will meet the MACT floor emission limits in the Clay Ceramics Manufacturing final rule, so there are no secondary impacts expected for these sources. There are no major sources producing ceramic floor tile or ceramic wall tile. The five facilities that were major sources at the time of the 2008 and 2010 EPA surveys have already taken the necessary steps to become synthetic area sources. Consequently, none of the known ceramic tile facilities are expected to be subject to the provisions of the Clay Ceramics Manufacturing NESHAP, which means that no secondary impacts are expected for ceramic tile affected sources under the final Clay Ceramics Manufacturing NESHAP.
For the BSCP Manufacturing source category, the average national brick price under the promulgated standards increases by 1.8 percent or $4.37 per
Based on the results of the small entity screening analysis for BSCP Manufacturing, the EPA concluded that it is not able to certify that the BSCP Manufacturing NESHAP will not have a significant impact on a substantial number of small entities. As a result, the EPA initiated a Small Business Advocacy Review (SBAR) Panel and undertook an Initial Regulatory Flexibility Analysis (IRFA).
For Clay Ceramics Manufacturing, one sanitaryware company owns major sources and will incur costs (for testing, monitoring, recordkeeping and reporting). That affected company is not a small business. The compliance costs are less than 0.002 percent of sales for the affected company. Hence, the economic impact for compliance is minimal. As noted above, there are no major sources producing ceramic floor tile or ceramic wall tile. Because no small firms face significant control costs, there is no significant impact on small entities. Thus, the Clay Ceramics Manufacturing regulation is not expected to have significant impact on a substantial number of small entities.
For more information on the benefits analysis and market analyses, please refer to the Regulatory Impact Analysis (RIA) for the BSCP Manufacturing NESHAP, “Regulatory Impact Analysis: Final Brick and Structural Clay Products NESHAP,” which is available in Docket ID No. EPA-HQ-OAR-2013-0291.
Emission controls installed to meet the requirements of this rule will generate benefits by reducing emissions of HAP as well as criteria pollutants and their precursors, NO
These co-benefits estimates represent the total monetized human health benefits for populations exposed to less PM
These models assume that all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality because the scientific evidence is not yet sufficient to allow differentiation of effects estimates by particle type. Even though we assume that all fine particles have equivalent health effects, the benefit-per-ton estimates vary between precursors depending on the location and magnitude of their impact on PM
It is important to note that the magnitude of the PM
Considering a substantial body of published scientific literature, reflecting thousands of epidemiology, toxicology and clinical studies, the EPA's
In general, we are more confident in the magnitude of the risks we estimate from simulated PM
For this analysis, policy-specific air quality data are not available due to time and resource limitations and, thus, we are unable to estimate the percentage of premature mortality associated with this specific rule's emission reductions at each PM
Every benefit analysis examining the potential effects of a change in environmental protection requirements is limited, to some extent, by data gaps, model capabilities (such as geographic coverage) and uncertainties in the underlying scientific and economic studies used to configure the benefit and cost models. Despite these uncertainties, we believe the benefit analysis for this rule provides a reasonable indication of the expected health benefits of the rulemaking under a set of reasonable assumptions. This analysis does not include the type of detailed uncertainty assessment found in the 2012 PM
It should be noted that the monetized co-benefits estimates provided above do not include benefits from several important benefit categories, including exposure to HAP, NO
The specific control technologies for this rule are anticipated to have minor secondary disbenefits, including an increase of 41 tons of NO
For more information on the benefits analysis, please refer to the RIA for this rule, “Regulatory Impact Analysis: Final Brick and Structural Clay Products NESHAP,” which is available in Docket ID No. EPA-HQ-OAR-2013-0291.
Additional information about these statutes and Executive Orders can be found at
This action is an economically significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the dockets for this action. The EPA prepared an analysis of the potential costs and benefits associated with this action. This analysis is contained in “Regulatory Impact Analysis: Final Brick and Structural Clay Products NESHAP.” A copy of the analysis is available in the docket for the BSCP Manufacturing NESHAP (Docket ID No. EPA-HQ-OAR-2013-0291) and the analysis is briefly summarized here.
The EPA's study estimates that affected BSCP facilities will incur total annualized costs of $24.6 million (2011 dollars) under the BSCP Manufacturing NESHAP, including costs of emission controls, testing and monitoring, along with recordkeeping and reporting costs for facilities that have testing and monitoring. The EPA gathered information on firm sales and overall industry profitability for firms owning affected BSCP facilities. The EPA estimated that two to four BSCP manufacturing facilities are at significant risk of closure under the final standards.
The EPA also conducted an assessment of the benefits of the final rule, as described in section VI of this preamble. These estimates reflect the monetized human health benefits of reducing cases of morbidity and premature mortality among populations exposed to PM
Based on the EPA's examination of costs and benefits of the final BSCP Manufacturing NESHAP, the EPA believes that the benefits of the BSCP Manufacturing NESHAP will exceed the costs.
The EPA also examined the costs and economic impacts associated with the Clay Ceramics Manufacturing NESHAP. The remaining firm with major sources is estimated to incur costs as a result of the Clay Ceramics Manufacturing final rule and the firm only incurs costs associated with testing, monitoring, recordkeeping and reporting. Total annualized costs are only $92,400 (2011 dollars) and the firm's estimated costs of complying with the Clay Ceramics Manufacturing NESHAP are less than 0.002 percent of sales.
The information collection activities in the BSCP Manufacturing NESHAP and Clay Ceramics Manufacturing NESHAP have been submitted for approval to OMB under the PRA. The ICR document that the EPA prepared for the BSCP Manufacturing NESHAP has been assigned EPA ICR number 2509.01. The ICR document that the EPA prepared for the Clay Ceramics Manufacturing NESHAP has been assigned EPA ICR number 2510.01. You can find copies of the ICRs in the dockets for the BSCP Manufacturing NESHAP and Clay Ceramics Manufacturing NESHAP, and they are briefly summarized here. The information collection requirements are not enforceable until OMB approves them.
The information collected from respondents will be used by EPA enforcement personnel to: (1) identify new, modified, reconstructed and existing sources subject to the standards; (2) ensure that MACT is being properly applied; and (3) ensure that the APCD are being properly operated and maintained on a continuous basis. In addition, records and reports are necessary to enable the EPA to identify facilities that may not be in compliance with the standards. Based on the reported information, the EPA can decide which facilities should be inspected and what records or processes should be inspected at these facilities. The records that facilities maintain will indicate to the EPA whether the owners and operators are in compliance with the emission limitations (including emission limits, operating limits) and work practice standards. Much of the information the EPA would need to determine compliance would be recorded and retained onsite at the facility. Such information would be reviewed by enforcement personnel during an inspection and would not need to be routinely reported to the EPA.
All information submitted to the EPA for which a claim of confidentiality is made will be safeguarded according to EPA policies set forth in title 40, chapter 1, part 2, subpart B—Confidentiality of Business Information. (See 40 CFR 2; 41 FR 36902, September 1, 1976; amended by 43 FR 39999, September 28, 1978; 43 FR 42251, September 28, 1978; and 44 FR 17674, March 23, 1979.)
Potential respondents to the information collection requirements in the BSCP Manufacturing NESHAP are owners and operators of new and existing sources at BSCP manufacturing facilities. A BSCP facility manufactures brick, including face brick, structural brick, brick pavers, or other brick and/or structural clay products including clay pipe; roof tile; extruded floor and wall tile; or other extruded, dimensional clay products. The BSCP facilities typically form, dry and fire bricks and shapes that are composed primarily of clay and shale. Kilns are used to fire BSCP. The rule applies to all new and existing tunnel and periodic kilns at BSCP facilities.
Potential respondents to the information collection requirements in the Clay Ceramics Manufacturing NESHAP are owners and operators of new and existing sources at clay ceramics manufacturing facilities. A clay ceramics facility manufactures pressed floor tile, pressed wall tile, or sanitaryware (
The information requirements are based on notification, recordkeeping and reporting requirements in the NESHAP General Provisions (40 CFR part 63, subpart A), which are mandatory for all operators subject to national emissions standards. These recordkeeping and reporting requirements are specifically authorized by CAA section 114 (42 U.S.C. 7414). All information submitted to the EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to the EPA policies set forth in 40 CFR part 2, subpart B.
In addition to the notification, recordkeeping and reporting requirements in the NESHAP General Provisions, the final rule includes paperwork requirements associated with initial and 5-year repeat testing for selected process equipment, electronic reporting of performance test results, parameter monitoring, preparation of an OM&M plan, maintenance and inspection of process and control equipment, compliance with work practice standards and periods of malfunction.
Collection of data will begin after the effective date of the final BSCP Manufacturing NESHAP and Clay Ceramics Manufacturing NESHAP. The compliance date for existing sources is 3 years after the effective date. The compliance date for new or reconstructed sources is the effective date if the source startup date is before the effective date, or upon startup if the startup date is on or after the effective date. The schedule for notifications and reports required by the rule is summarized below.
For BSCP and clay ceramics facilities with existing affected sources, the initial notification stating that the facility is subject to the rule must be submitted no later than 120 calendar days after the effective date of the rule. Facilities with new or reconstructed affected sources for which startup occurs on or after the effective date must submit the initial notification no later than 120 calendar days after the source becomes subject to the rule (although we are projecting no new affected sources in the short term). Facilities may choose to submit a request to use the routine control device maintenance alternative standard no later than 120 calendar days prior to the compliance date. Facilities required to conduct a performance test must submit a notification of intent to conduct a performance test at least 60 calendar days before the performance test is scheduled to begin. For each initial compliance demonstration that includes a performance test, facilities must submit an initial notification of compliance status no later than 60 calendar days following the completion of the performance test. For each initial compliance demonstration that does not involve a performance test, facilities must submit an initial notification within 30 calendar days of completing the initial compliance demonstration. Records necessary to determine compliance with the emission limitations and work practice standards must be compiled on a daily basis, and compliance reports must be submitted to the Administrator on a semiannual basis. Repeat performance tests are to be conducted every 5 years to ensure ongoing compliance.
There are 90 BSCP facilities that are currently major sources of HAP, 84 of which have at least one tunnel kiln. An estimated 21 of these facilities are projected to become synthetic area sources by promulgation rather than comply with the BSCP standards. The remaining 69 facilities (63 of which have a tunnel kiln) are expected to be subject to the BSCP Manufacturing NESHAP. For these 69 facilities, the annual recordkeeping and reporting burden associated with the BSCP standards (averaged over the first 3 years after the effective date of the standards) is estimated to be 20,963 labor hours per year, at a cost of $1,113,105 per year (yr). Burden is defined at 5 CFR 1320.3(b).
No capital costs associated with monitoring, testing, recordkeeping or reporting are expected to be incurred during this period. The annual operation and maintenance costs are estimated to be $682/yr.
The total burden for the federal government (averaged over the first 3 years after the effective date of the standards) is estimated to be 71 labor hours per year, at a total labor cost of $3,698/yr. (All costs are in 2011 dollars.)
There are three clay ceramics facilities that are currently major sources of HAP and are expected to be subject to the Clay Ceramics Manufacturing NESHAP. For these three facilities, the annual recordkeeping and reporting burden associated with the Clay Ceramics standards (averaged over the first 3 years after the effective date of the standards) is estimated to total 996 labor hours per year at a cost of $52,674/yr.
As with the BSCP standards, no capital costs associated with monitoring, testing, recordkeeping or reporting are expected to be incurred during this period. The annual operation and maintenance costs are estimated to be $44/yr.
The total burden for the federal government (averaged over the first 3 years after the effective date of the standards) is estimated to be 4.6 labor hours per year, at a total labor cost of $239/yr. (All costs are in 2011 dollars.)
Because BSCP and clay ceramics facilities are not required to come into full compliance with the standards until 3 years after promulgation, much of the respondent burden (
For the BSCP Manufacturing NESHAP, we estimate an average annual recordkeeping and reporting burden of 48,674 labor hours per year, at a cost of $2,702,447/yr, for years 4 through 6. We also estimate annualized capital costs of $606,760/yr and annual operating and maintenance costs of $206,872/yr over this period, for a total annualized cost of $813,632/yr. The average annual burden for the federal government for years 4 through 6 is estimated to be 3,891 labor hours per year, at a total labor cost of $204,550/yr. (All costs are in 2011 dollars.)
For the Clay Ceramics Manufacturing NESHAP, we estimate an average annual recordkeeping and reporting burden of 2,323 labor hours per year, at a cost of $122,786/yr, for years 4 through 6. We also estimate annualized capital costs of $72,050/yr and annual operating and maintenance costs of $27,069/yr over this period, for a total annualized cost of $99,119/yr. The average annual burden for the federal government for years 4 through 6 is estimated to be 180 labor hours per year, at a total labor cost of $9,448 per year. (All costs are in 2011 dollars.)
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
Pursuant to sections 603 and 609(b) of the RFA, the EPA prepared an IRFA that examines the impact of the proposed rule on small entities along with regulatory alternatives that could
As required by section 604 of the RFA, the EPA prepared a final regulatory flexibility analysis (FRFA) for this action. The FRFA addresses the issues raised by public comments on the IRFA for the proposed rule. The complete FRFA is included in Section 5 of “Regulatory Impact Analysis: Final Brick and Structural Clay Products NESHAP,” available for review in the docket (Docket ID No. EPA-HQ-OAR-2013-0291), and is summarized here.
The EPA is required under CAA section 112(d) to establish emission standards for each category or subcategory of major and area sources of HAP listed for regulation in section 112(b). These standards are applicable to new or existing sources of HAP and shall require the maximum degree of emission reduction. In the Administrator's judgment, the pollutants emitted from BSCP manufacturing facilities cause or contribute significantly to air pollution that may reasonably be anticipated to endanger public health. Consequently, NESHAP for the BSCP source category are being finalized.
Section 112(d) of the CAA requires the EPA to set emissions standards for HAP emitted by major stationary sources based on the performance of the MACT. The MACT standards for existing sources must be at least as stringent as the average emissions limitation achieved by the best performing 12 percent of existing sources (for which the Administrator has emissions information) or the best performing five sources for source categories with less than 30 sources (CAA section 112(d)(3)(A) and (B)). For new sources, MACT standards must be at least as stringent as the control level achieved in practice by the best controlled similar source (CAA section 112(d)(3)). The EPA also must consider more stringent “beyond-the-floor” control options. When considering beyond-the-floor options, the EPA must consider not only the maximum degree of reduction in emissions of HAP, but must take into account costs, energy and non-air environmental impacts when doing so. This rule is being proposed to comply with CAA section 112(d).
The EPA received comments on the proposed standards and requests for comment that were included based on SBAR Panel recommendations. See section V of this preamble and “National Emission Standards for Hazardous Air Pollutants for Brick and Structural Clay Products Manufacturing: Background Information for Final Rule—Summary of Public Comments and Responses” in Docket ID No. EPA-HQ-OAR-2013-0291 for more detailed comment summaries and responses.
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The SBA's Office of Advocacy supported the EPA's proposals to set work practice standards and health-based emission standards in all instances allowed by statute and suggested other areas of improvement. The comments on areas of improvement and the EPA's responses are summarized below:
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Second, the EPA notes that following proposal, it received additional information on the Hg content of raw materials from facilities in the BSCP industry. This information did not provide the EPA with the information needed to establish subcategories based on the class or type of raw materials. However, the EPA has concluded that it has sufficient information to allow it to finalize Hg standards that account for the variability of Hg content in raw materials. Thus, the EPA's conclusion is that there is no basis to delay promulgation of the Hg standards in order to gather more information.
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Of 44 parent companies owning BSCP facilities, 36 parent companies are small businesses. The EPA computed the ratio of estimated compliance costs to company sales (cost-to-sales ratio) to measure the magnitude of potential impacts on small companies. Under the final standards, the EPA estimated that two to three small BSCP manufacturing facilities (two to four BSCP manufacturing facilities overall) are at significant risk of closure.
Respondents would be required to provide one-time and periodic notifications, including initial notification, notification of performance tests, and notification of compliance status. Respondents would also be required to submit semiannual reports documenting compliance with the rule and detailing any compliance issues, and they would be required to submit the results of performance tests to the EPA's ERT. Respondents would be required to keep documentation supporting information included in these notifications and reports, as well as records of the operation and maintenance of affected sources and APCD at the facility.
The EPA considered three major options for this final rule; see “Regulatory Impact Analysis: Final Brick and Structural Clay Products NESHAP,” in Docket ID No. EPA-HQ-OAR-2013-0291), for more information about the alternatives. Finalizing the proposed changes without revision is expected to have similar cost and emission reduction impacts to the standards the EPA is finalizing, with a similar number of closures (one to two small BSCP manufacturing facilities rather than two to three). However, for the various legal and technical reasons outlined in this preamble and “National Emission Standards for Hazardous Air Pollutants for Brick and Structural Clay Products Manufacturing: Background Information for Final Rule—Summary of Public Comments and Responses” in Docket ID No. EPA-HQ-OAR-2013-0291, the EPA determined that the PM/non-Hg HAP metals and Hg standards should not be finalized as proposed. The other alternative considered included the same standards for acid gases and Hg that are being finalized but only provided one set of limits PM/non-Hg HAP metals (
In addition, the EPA is preparing a Small Entity Compliance Guide to help small entities comply with this rule. The guide will be available on the World Wide Web approximately 1 year after promulgation of the rule, at
This action does not contain an unfunded mandate of $100 million or more as described in the 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 does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, 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, as specified in Executive Order 13175. The action imposes requirements on owners and operators of BSCP and clay ceramics manufacturing facilities and not tribal governments. Thus, Executive Order 13175 does not apply to this action.
This action is not subject to Executive Order 13045 because the EPA does not believe the environmental health risks or safety risks addressed by this action present a disproportionate risk to children. This action's health and risk assessments are contained in the memoranda “Risk Assessment to Determine a Health-Based Emission Limitation for Acid Gases for the Brick and Structural Clay Products Manufacturing Source Category,” Docket Item No. EPA-HQ-OAR-2013-0291-0132 and “Risk Assessment to Determine a Health-Based Emission Limitation for Acid Gases for the Clay Ceramics Manufacturing Source Category,” Docket Item No. EPA-HQ-OAR-2013-0290-0213.
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 action will not adversely directly affect productivity, competition, or prices in the energy sector.
This action involves technical standards. The EPA has decided to use the following four voluntary consensus standards as acceptable alternatives to the EPA test methods for the purpose of this rule.
The EPA has decided to use ANSI/ASME PTC 19.10-1981, “Flue and Exhaust Gas Analyses,” for its manual methods of measuring the oxygen or carbon dioxide content of the exhaust gas. This standard is acceptable as an alternative to Method 3A and 3B and is available from the American Society of Mechanical Engineers (ASME) at
The EPA has also decided to use ASTM D6735-01 (Reapproved 2009), “Standard Test Method for Measurement of Gaseous Chlorides and Fluorides from Mineral Calcining Exhaust Sources—Impinger Method,” for its measurement of the concentration of gaseous HCl and HF and other gaseous chlorides and fluorides. This standard is acceptable as an alternative to Methods 26 and 26A.
In addition, the EPA has decided to use ASTM D6784-02 (Reapproved 2008), “Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method),” for its determination of elemental, oxidized, particle-bound, and total Hg emissions. This standard is acceptable as an alternative to Method 29 (portion for Hg only).
Finally, the EPA has decided to use ASTM D6348-03 (Reapproved 2010), “Standard Test Method for Determination of Gaseous Compounds by Extractive Direct Interface Fourier Transform Infrared (FTIR) Spectroscopy,” for its use of an extractive sampling system to direct stationary source effluent to an FTIR spectrometer for the identification and quantification of gaseous compounds. This standard is acceptable as an alternative to Method 320 with the following conditions: (1) The test plan preparation and implementation in the Annexes to ASTM D 6348-03, Sections A1 through A8 are mandatory; and (2) in ASTM D6348-03 Annex A5 (Analyte Spiking Technique), the percent recovery (%R) must be determined for each target analyte (Equation A5.5). In order for the test data to be acceptable for a compound, %R must be greater than or equal to 70 percent and less than or equal to 130 percent. If the %R value does not meet this criterion for a target compound, the test data are not acceptable for that compound and the test must be repeated for that analyte (
The standards ASTM D6735-01, ASTM D6784-02, and ASTM D6348-03 are available from the American Society of Testing and Materials (ASTM) at
While the EPA identified ASTM D7520-13, “Standard Test Method for Determining the Opacity in a Plume in an Outdoor Ambient Atmosphere” as being potentially applicable as an alternative to Method 9 for measuring opacity from BSCP tunnel kilns, the agency decided not to use it. The use of this voluntary consensus standard would be impractical. The five provisions for the use of this standard appear to be based on the assumption that the optical camera will be used on a daily basis. However, this rulemaking does not include daily Method 9 tests. The rule requirements are such that a Method 9 observation would need to be made unexpectedly and only when the Method 22 test failed. It would be unreasonable to expect that a source would be making daily calibrations of the camera when its use would be so infrequent. Given that, it is unlikely that the camera could be made ready in the time specified for the Method 9
The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations because it does not affect the level of protection provided to human health or the environment. As explained in the December 2014 proposal (79 FR 75672), the EPA determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations, because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. Additionally, the agency has conducted a proximity analysis for this rulemaking, which is located in the docket. (See “EJ Screening Report for Brick and Structural Clay,” Docket Item No. EPA-HQ-OAR-2013-0291-0102, and “EJ Screening Report for Clay Ceramics,” Docket Item No. EPA-HQ-OAR-2013-0290-0241.)
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 a “major rule” as defined by 5 U.S.C. 804(2).
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Environmental Protection Agency amends 40 CFR part 63 as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(g) * * *
(1) ANSI/ASME PTC 19.10-1981, Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus], issued August 31, 1981, IBR approved for §§ 63.309(k), 63.457(k), 63.772(e) and (h), 63.865(b), 63.1282(d) and (g), 63.1625(b), 63.3166(a), 63.3360(e), 63.3545(a), 63.3555(a), 63.4166(a), 63.4362(a), 63.4766(a), 63.4965(a), 63.5160(d), table 4 to subpart UUUU, 63.9307(c), 63.9323(a), 63.11148(e), 63.11155(e), 63.11162(f), 63.11163(g), 63.11410(j), 63.11551(a), 63.11646(a), and 63.11945, table 5 to subpart DDDDD, table 4 to subpart JJJJJ, table 4 to subpart KKKKK, tables 4 and 5 of subpart UUUUU, table 1 to subpart ZZZZZ, and table 4 to subpart JJJJJJ.
(h) * * *
(75) ASTM D6348-03 (Reapproved 2010), Standard Test Method for Determination of Gaseous Compounds by Extractive Direct Interface Fourier Transform Infrared (FTIR) Spectroscopy, including Annexes A1 through A8, (Approved October 1, 2010), IBR approved for tables 4 and 5 to subpart JJJJJ, tables 4 and 6 to subpart KKKKK, tables 1, 2, and 5 to subpart UUUUU, and appendix B to subpart UUUUU.
(86) ASTM D6735-01 (Reapproved 2009), Standard Test Method for Measurement of Gaseous Chlorides and Fluorides from Mineral Calcining Exhaust Sources—Impinger Method, IBR approved for tables 4 and 5 to subpart JJJJJ and tables 4 and 6 to subpart KKKKK.
(88) ASTM D6784-02 (Reapproved 2008), Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury in Flue Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method), (Approved April 1, 2008), IBR approved for §§ 63.11646(a), 63.11647(a) and (d), tables 1, 2, 5, 11, 12t, and 13 to subpart DDDDD, tables 4 and 5 to subpart JJJJJ, tables 4 and 6 to subpart KKKKK, table 4 to subpart JJJJJJ, table 5 to subpart UUUUU, and appendix A to subpart UUUUU.
(m) * * *
(2) EPA-454/R-98-015, Office of Air Quality Planning and Standards (OAQPS), Fabric Filter Bag Leak Detection Guidance, September 1997, IBR approved for §§ 63.548(e), 63.7525(j), 63.8450(e), 63.8600(e), and 63.11224(f).
This subpart establishes national emission limitations for hazardous air pollutants (HAP) emitted from brick and structural clay products (BSCP) manufacturing facilities. This subpart also establishes requirements to demonstrate initial and continuous compliance with the emission limitations.
You are subject to this subpart if you own or operate a BSCP manufacturing facility that is, is located at, or is part of, a major source of HAP emissions according to the criteria in paragraphs (a) and (b) of this section.
(a) A BSCP manufacturing facility is a plant site that manufactures brick (including, but not limited to, face brick, structural brick, and brick pavers); clay pipe; roof tile; extruded floor and wall tile; and/or other extruded, dimensional clay products. Brick and structural clay products manufacturing facilities typically process raw clay and shale, form the processed materials into bricks or shapes, and dry and fire the bricks or shapes. A plant site that manufactures refractory products, as defined in § 63.9824, or clay ceramics, as defined in § 63.8665, is not a BSCP manufacturing facility.
(b) A major source of HAP emissions is any stationary source or group of stationary sources within a contiguous area under common control that emits or has the potential to emit any single HAP at a rate of 9.07 megagrams (10 tons) or more per year or any combination of HAP at a rate of 22.68 megagrams (25 tons) or more per year.
(a) This subpart applies to each existing, new, or reconstructed affected source at a BSCP manufacturing facility.
(b) For the purposes of this subpart, the affected sources are described in paragraphs (b)(1) and (2) of this section.
(1) All tunnel kilns at a BSCP manufacturing facility are an affected source. For the remainder of this subpart, a tunnel kiln with a design capacity equal to or greater than 9.07 megagrams per hour (Mg/hr) (10 tons per hour (tph)) of fired product will be called a large tunnel kiln, and a tunnel kiln with a design capacity less than 9.07 Mg/hr (10 tph) of fired product will be called a small tunnel kiln.
(2) Each periodic kiln is an affected source.
(c) Process units not subject to the requirements of this subpart are listed in paragraphs (c)(1) through (4) of this section.
(1) Kilns that are used exclusively for setting glazes on previously fired products are not subject to the requirements of this subpart.
(2) Raw material processing and handling.
(3) Dryers.
(4) Sources covered by subparts KKKKK and SSSSS of this part.
(d) A source is a new affected source if construction of the affected source began after December 18, 2014, and you met the applicability criteria at the time you began construction.
(e) An affected source is reconstructed if you meet the criteria as defined in § 63.2.
(f) An affected source is existing if it is not new or reconstructed.
(a) You must comply with this subpart no later than the compliance dates in Table 7 to this subpart.
(b) You must meet the notification requirements in § 63.8480 according to the schedule in § 63.8480 and in subpart A of this part. Some of the notifications must be submitted before you are required to comply with the emission limitations in this subpart.
(a) You must meet each emission limit in Table 1 to this subpart that applies to you.
(b) You must meet each operating limit in Table 2 to this subpart that applies to you.
(c) You must meet each work practice standard in Table 3 to this subpart that applies to you.
(a) To meet the emission limitations in Tables 1 and 2 to this subpart, you must use one or more of the options listed in paragraphs (a)(1) and (2) of this section.
(1)
(2)
(b) To meet the work practice standards for affected periodic kilns, you must comply with the requirements listed in Table 3 to this subpart.
(c) To meet the work practice standards for dioxins/furans for affected tunnel kilns, you must comply with the requirements listed in Table 3 to this subpart.
(d) To meet the work practice standards for affected tunnel kilns during periods of startup and shutdown, you must comply with the requirements listed in Table 3 to this subpart.
(a) You must be in compliance with the emission limitations (including operating limits) in this subpart at all times, except during periods that you are approved for and in compliance with the alternative standard for routine control device maintenance as specified in paragraph (d) of this section, and except during periods of start-up and shutdown, at which time you must comply with the applicable work practice standard specified in Table 3 to this subpart.
(b) At all times, you must operate and maintain any affected source, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. The general duty to minimize emissions does not require you to make any further efforts to reduce emissions if levels required by the applicable standard have been achieved. Determination of whether a source is operating in compliance with operation and maintenance requirements will be based on information available to the Administrator which may include, but is not limited to, monitoring results, review of operation and maintenance procedures, review of operation and maintenance records, and inspection of the source. During the period between the compliance date specified for your affected source in § 63.8395 and the date upon which continuous monitoring systems (CMS) (
(c) For each affected kiln that is subject to the emission limits specified in Table 1 to this subpart, you must prepare and implement a written operation, maintenance, and monitoring (OM&M) plan according to the requirements in § 63.8425.
(d) If you own or operate an affected kiln that is subject to the emission limits specified in Table 1 to this subpart and must perform routine maintenance on the control device for that kiln, you may bypass the kiln control device and continue operating the kiln subject to the alternative standard established in this paragraph upon approval by the Administrator and provided you satisfy the conditions listed in paragraphs (d)(1) through (5) of this section.
(1) You must request to use the routine control device maintenance alternative standard from the Administrator no later than 120 calendar days before the compliance date specified in § 63.8395. Your request must justify the need for the routine maintenance on the control device and the time required to accomplish the maintenance activities, describe the maintenance activities and the frequency of the maintenance activities, explain why the maintenance cannot be accomplished during kiln shutdowns, provide information stating whether the continued operation of the affected source will result in fewer emissions than shutting the source down while the maintenance is performed, describe how you plan to comply with paragraph (b) of this section during the maintenance, and provide any other documentation required by the Administrator.
(2) The routine control device maintenance must not exceed 4 percent of the annual operating uptime for each kiln.
(3) The request for the routine control device maintenance alternative standard, if approved by the Administrator, must be incorporated by reference in and attached to the affected source's title V permit.
(4) You must minimize HAP emissions during the period when the kiln is operating and the control device is offline by complying with the applicable standard in Table 3 to this subpart.
(5) You must minimize the time period during which the kiln is operating and the control device is offline.
(e) You must be in compliance with the work practice standards in this subpart at all times.
(f) You must be in compliance with the provisions of subpart A of this part, except as noted in Table 10 to this subpart.
(a) For each affected kiln that is subject to the emission limits specified in Table 1 to this subpart, you must prepare, implement, and revise as necessary an OM&M plan that includes the information in paragraph (b) of this section. Your OM&M plan must be available for inspection by the delegated authority upon request.
(b) Your OM&M plan must include, as a minimum, the information in paragraphs (b)(1) through (13) of this section.
(1) Each process and APCD to be monitored, the type of monitoring device that will be used, and the operating parameters that will be monitored.
(2) A monitoring schedule that specifies the frequency that the parameter values will be determined and recorded.
(3) The limits for each parameter that represent continuous compliance with the emission limitations in § 63.8405. The limits must be based on values of the monitored parameters recorded during performance tests.
(4) Procedures for the proper operation and routine and long-term maintenance of each APCD, including a maintenance and inspection schedule that is consistent with the manufacturer's recommendations.
(5) Procedures for installing the CMS sampling probe or other interface at a measurement location relative to each affected process unit such that the measurement is representative of control of the exhaust emissions (
(6) Performance and equipment specifications for the sample interface, the pollutant concentration or parametric signal analyzer, and the data collection and reduction system.
(7) Continuous monitoring system performance evaluation procedures and acceptance criteria (
(8) Procedures for the proper operation and maintenance of monitoring equipment consistent with the requirements in §§ 63.8450 and 63.8(c)(1), (3), (7), and (8).
(9) Continuous monitoring system data quality assurance procedures consistent with the requirements in § 63.8(d)(1) and (2). The owner or operator shall keep these written procedures on record for the life of the affected source or until the affected source is no longer subject to the provisions of this part, to be made available for inspection, upon request, by the Administrator. If the performance evaluation plan in § 63.8(d)(2) is revised, the owner or operator shall keep previous (
(10) Continuous monitoring system recordkeeping and reporting procedures consistent with the requirements in §§ 63.8485 and 63.8490.
(11) Procedures for responding to operating parameter deviations,
(i) Procedures for determining the cause of the operating parameter deviation.
(ii) Actions necessary for correcting the deviation and returning the operating parameters to the allowable limits.
(iii) Procedures for recording the times that the deviation began and ended and corrective actions were initiated and completed.
(12) Procedures for keeping records to document compliance.
(13) If you operate an affected kiln and you plan to take the kiln control device out of service for routine maintenance, as specified in § 63.8420(d), the procedures specified in paragraphs (b)(13)(i) and (ii) of this section.
(i) Procedures for minimizing HAP emissions from the kiln during periods of routine maintenance of the kiln control device when the kiln is operating and the control device is offline.
(ii) Procedures for minimizing the duration of any period of routine maintenance on the kiln control device when the kiln is operating and the control device is offline.
(c) Changes to the operating limits in your OM&M plan require a new performance test. If you are revising an operating limit parameter value, you must meet the requirements in paragraphs (c)(1) and (2) of this section.
(1) Submit a notification of performance test to the Administrator as specified in § 63.7(b).
(2) After completing the performance tests to demonstrate that compliance with the emission limits can be achieved at the revised operating limit parameter value, you must submit the performance test results and the revised operating limits as part of the Notification of Compliance Status required under § 63.9(h).
(d) If you are revising the inspection and maintenance procedures in your OM&M plan, you do not need to conduct a new performance test.
For each affected kiln that is subject to the emission limits specified in Table 1 to this subpart, you must conduct performance tests within 180 calendar days after the compliance date that is specified for your source in § 63.8395 and according to the provisions in § 63.7(a)(2).
(a) For each affected kiln that is subject to the emission limits specified in Table 1 to this subpart, you must conduct a performance test before renewing your 40 CFR part 70 operating permit or at least every 5 years following the initial performance test.
(b) You must conduct a performance test when you want to change the parameter value for any operating limit specified in your OM&M plan.
(a) You must conduct each performance test in Table 4 to this subpart that applies to you.
(b) Before conducting the performance test, you must install and calibrate all monitoring equipment.
(c) Each performance test must be conducted according to the requirements in § 63.7 and under the specific conditions in Table 4 to this subpart.
(d) Performance tests shall be conducted under such conditions as the Administrator specifies to you based on representative performance of the affected source for the period being tested. Representative conditions exclude periods of startup and shutdown. You may not conduct performance tests during periods of malfunction. You must record the process information that is necessary to document operating conditions during the test and include in such record an explanation to support that such conditions represent normal operation. Upon request, you shall make available to the Administrator such records as may be necessary to determine the conditions of performance tests.
(e) You must conduct at least three separate test runs for each performance test required in this section, as specified in § 63.7(e)(3). Each test run must last at least 1 hour.
(f) You must use the data gathered during the performance test and the equations in paragraphs (f)(1) and (2) of this section to determine compliance with the emission limitations.
(1) To determine compliance with the production-based particulate matter (PM) and mercury (Hg) emission limits in Table 1 to this subpart, you must calculate your mass emissions per unit of production for each test run using Equation 1:
(2) To determine compliance with the health-based standard for acid gas HAP for BSCP manufacturing facilities in Table 1 to this subpart, you must:
(i) Calculate the HCl-equivalent emissions for HF, HCl, and Cl
(ii) If you have multiple tunnel kilns at your facility, sum the HCl-equivalent values for all tunnel kilns at the facility using Equation 3:
(iii) Compare this value to the health-based standard in Table 1 to this subpart.
(g) You must establish each site-specific operating limit in Table 2 to this subpart that applies to you as specified in paragraph (g)(1) of this section and in Table 4 to this subpart.
(1)(i) If you do not have an APCD installed on your kiln, calculate the maximum potential HCl-equivalent emissions for HF, HCl, and Cl
(ii) If you have multiple tunnel kilns at your facility, sum the maximum potential HCl-equivalent values for all tunnel kilns at the facility using Equation 5:
(iii) If you have a single tunnel kiln at your facility and the total facility maximum potential HCl-equivalent emissions (E
(iv) If you have multiple tunnel kilns at your facility and the total facility maximum potential HCl-equivalent emissions (E
(2) [Reserved]
(h) For each affected kiln that is subject to the emission limits specified in Table 1 to this subpart and is equipped with an APCD that is not addressed in Table 2 to this subpart or that is using process changes as a means of meeting the emission limits in Table 1 to this subpart, you must meet the requirements in § 63.8(f) and paragraphs (h)(1) and (2) of this section.
(1) Submit a request for approval of alternative monitoring procedures to the Administrator no later than the notification of intent to conduct a performance test. The request must contain the information specified in paragraphs (h)(1)(i) through (iv) of this section.
(i) A description of the alternative APCD or process changes.
(ii) The type of monitoring device or procedure that will be used.
(iii) The operating parameters that will be monitored.
(iv) The frequency that the operating parameter values will be determined and recorded to establish continuous compliance with the operating limits.
(2) Establish site-specific operating limits during the performance test based on the information included in the approved alternative monitoring procedures request and, as applicable, as specified in Table 4 to this subpart.
(a) You must install, operate, and maintain each CMS according to your OM&M plan and the requirements in paragraphs (a)(1) through (5) of this section.
(1) Conduct a performance evaluation of each CMS according to your OM&M plan.
(2) The CMS must complete a minimum of one cycle of operation for each successive 15-minute period. To have a valid hour of data, you must have at least three of four equally spaced data values (or at least 75 percent if you collect more than four data values per hour) for that hour (not including startup, shutdown, malfunction, out-of-control periods, or periods of routine control device maintenance covered by the routine control device maintenance alternative standard as specified in § 63.8420(d)).
(3) Determine and record the 3-hour block averages of all recorded readings, calculated after every 3 hours of operation as the average of the previous 3 operating hours. To calculate the average for each 3-hour average period, you must have at least 75 percent of the recorded readings for that period (not including startup, shutdown, malfunction, out-of-control periods, or periods of routine control device maintenance covered by the routine control device maintenance alternative standard as specified in § 63.8420(d)).
(4) Record the results of each inspection, calibration, and validation check.
(5) At all times, maintain the monitoring equipment including, but not limited to, maintaining necessary parts for routine repairs of the monitoring equipment.
(b) For each liquid flow measurement device, you must meet the requirements in paragraphs (a)(1) through (5) and paragraphs (b)(1) through (3) of this section.
(1) Locate the flow sensor in a position that provides a representative flowrate.
(2) Use a flow sensor with a minimum measurement sensitivity of 2 percent of the liquid flowrate.
(3) At least semiannually, conduct a flow sensor calibration check.
(c) For each pressure measurement device, you must meet the requirements in paragraphs (a)(1) through (5) and paragraphs (c)(1) through (7) of this section.
(1) Locate the pressure sensor(s) in or as close to a position that provides a representative measurement of the pressure.
(2) Minimize or eliminate pulsating pressure, vibration, and internal and external corrosion.
(3) Use a gauge with a minimum measurement sensitivity of 0.5 inch of water or a transducer with a minimum measurement sensitivity of 1 percent of the pressure range.
(4) Check the pressure tap daily to ensure that it is not plugged.
(5) Using a manometer, check gauge calibration quarterly and transducer calibration monthly.
(6) Any time the sensor exceeds the manufacturer's specified maximum operating pressure range, conduct calibration checks or install a new pressure sensor.
(7) At least monthly, inspect all components for integrity, all electrical connections for continuity, and all mechanical connections for leakage.
(d) For each pH measurement device, you must meet the requirements in paragraphs (a)(1) through (5) and paragraphs (d)(1) through (4) of this section.
(1) Locate the pH sensor in a position that provides a representative measurement of pH.
(2) Ensure the sample is properly mixed and representative of the fluid to be measured.
(3) Check the pH meter's calibration at one point daily.
(4) At least monthly, inspect all components for integrity and all electrical connections for continuity.
(e) For each bag leak detection system, you must meet the requirements in paragraphs (e)(1) through (11) of this section.
(1) Each triboelectric bag leak detection system must be installed, calibrated, operated, and maintained according to EPA-454/R-98-015, “Fabric Filter Bag Leak Detection Guidance,” (incorporated by reference, see § 63.14). Other types of bag leak detection systems must be installed, operated, calibrated, and maintained in a manner consistent with the manufacturer's written specifications and recommendations.
(2) The bag leak detection system must be certified by the manufacturer to be capable of detecting PM emissions at concentrations of 10 milligrams per actual cubic meter (0.0044 grains per actual cubic foot) or less.
(3) The bag leak detection system sensor must provide an output of relative PM loadings.
(4) The bag leak detection system must be equipped with a device to continuously record the output signal from the sensor.
(5) The bag leak detection system must be equipped with an audible alarm system that will sound automatically when an increase in relative PM emissions over a preset level is detected. The alarm must be located where it is easily heard by plant operating personnel.
(6) For positive pressure fabric filter systems, a bag leak detector must be installed in each baghouse compartment or cell.
(7) For negative pressure or induced air fabric filters, the bag leak detector must be installed downstream of the fabric filter.
(8) Where multiple detectors are required, the system's instrumentation and alarm may be shared among detectors.
(9) The baseline output must be established by adjusting the range and the averaging period of the device and establishing the alarm set points and the alarm delay time according to section 5.0 of the EPA-454/R-98-015, “Fabric Filter Bag Leak Detection Guidance,” (incorporated by reference, see § 63.14).
(10) Following initial adjustment of the system, the sensitivity or range, averaging period, alarm set points, or alarm delay time may not be adjusted except as detailed in your OM&M plan. In no case may the sensitivity be increased by more than 100 percent or
(11) Record the results of each inspection, calibration, and validation check.
(f) For each lime, chemical, or carbon feed rate measurement device, you must meet the requirements in paragraphs (a)(1) through (5) and paragraphs (f)(1) and (2) of this section.
(1) Locate the measurement device in a position that provides a representative feed rate measurement.
(2) At least semiannually, conduct a calibration check.
(g) For each limestone feed system on a dry limestone adsorber (DLA), you must meet the requirements in paragraphs (a)(1), (4), and (5) of this section and must ensure on a monthly basis that the feed system replaces limestone at least as frequently as the schedule set during the performance test.
(h) For each temperature measurement device, you must meet the requirements in paragraphs (a)(1) through (5) and paragraphs (h)(1) through (3) of this section.
(1) Locate the measurement device in a position that provides a representative temperature.
(2) Use a measurement device with a minimum sensitivity of 1 percent of the temperature being measured.
(3) At least semiannually, conduct a calibration check.
(i) Requests for approval of alternate monitoring procedures must meet the requirements in §§ 63.8445(h) and 63.8(f).
(a) You must demonstrate initial compliance with each emission limitation and work practice standard that applies to you according to Table 5 to this subpart.
(b) You must establish each site-specific operating limit in Table 2 to this subpart that applies to you according to the requirements in § 63.8445 and Table 4 to this subpart.
(c) You must submit the Notification of Compliance Status containing the results of the initial compliance demonstration according to the requirements in § 63.8480(c).
(a) You must monitor and collect data according to this section.
(b) Except for periods of monitor malfunctions, associated repairs, and required quality assurance or control activities (including, as applicable, calibration checks and required zero and span adjustments), you must monitor continuously (or collect data at all required intervals) at all times that the affected source is operating. This includes periods of startup, shutdown, malfunction, and routine control device maintenance as specified in § 63.8420(d) when the affected source is operating.
(c) You may not use data recorded during monitoring malfunctions, associated repairs, out-of-control periods, or required quality assurance or control activities for purposes of calculating data averages. You must use all the valid data collected during all other periods in assessing compliance. Any averaging period for which you do not have valid monitoring data and such data are required constitutes a deviation from the monitoring requirements.
(a) You must demonstrate continuous compliance with each emission limit, operating limit, and work practice standard in Tables 1, 2, and 3 to this subpart that applies to you according to the methods specified in Table 6 to this subpart.
(b) For each affected kiln that is subject to the emission limits specified in Table 1 to this subpart and is equipped with an APCD that is not addressed in Table 2 to this subpart, or that is using process changes as a means of meeting the emission limits in Table 1 to this subpart, you must demonstrate continuous compliance with each emission limit in Table 1 to this subpart, and each operating limit established as required in § 63.8445(h)(2) according to the methods specified in your approved alternative monitoring procedures request, as described in §§ 63.8445(h)(1) and 63.8(f).
(c) You must report each instance in which you did not meet each emission limit and each operating limit in this subpart that applies to you. These instances are deviations from the emission limitations in this subpart. These deviations must be reported according to the requirements in § 63.8485(c)(9).
(d) [Reserved]
(e)(1)
(i) Perform daily VE observations of each kiln stack according to the procedures of Method 22 of 40 CFR part 60, appendix A-7. You must conduct the Method 22 test while the affected source is operating under normal conditions. The duration of each Method 22 test must be at least 15 minutes.
(ii) If VE are observed during any daily test conducted using Method 22 of 40 CFR part 60, appendix A-7, you must promptly conduct an opacity test, according to the procedures of Method 9 of 40 CFR part 60, appendix A-4. If opacity greater than 10 percent is observed, you must initiate and complete corrective actions according to your OM&M plan.
(iii) You may decrease the frequency of Method 22 testing from daily to weekly for a kiln stack if one of the conditions in paragraph (e)(1)(iii)(A) or (B) of this section is met.
(A) No VE are observed in 30 consecutive daily Method 22 tests for any kiln stack; or
(B) No opacity greater than 10 percent is observed during any of the Method 9 tests for any kiln stack.
(iv) If VE are observed during any weekly test and opacity greater than 10 percent is observed in the subsequent Method 9 test, you must promptly initiate and complete corrective actions according to your OM&M plan, resume testing of that kiln stack following Method 22 of 40 CFR part 60, appendix A-7, on a daily basis, as described in paragraph (e)(1)(i) of this section, and maintain that schedule until one of the conditions in paragraph (e)(1)(iii)(A) or (B) of this section is met, at which time you may again decrease the frequency of Method 22 testing to a weekly basis.
(v) If greater than 10 percent opacity is observed during any test conducted using Method 9 of 40 CFR part 60, appendix A-4, you must report these deviations by following the requirements in § 63.8485.
(2)
(a) You must submit all of the notifications in §§ 63.7(b) and (c), 63.8(f)(4), and 63.9(b) through (e), (g)(1), and (h) that apply to you, by the dates specified.
(b) You must submit all of the notifications specified in Table 8 to this subpart that apply to you, by the dates specified.
(c) If you are required to conduct a performance test or other initial compliance demonstration as specified in Tables 4 and 5 to this subpart, your Notification of Compliance Status as specified in Table 8 to this subpart must include the information in paragraphs (c)(1) through (3) of this section.
(1) The requirements in § 63.9(h)(2)(i).
(2) The operating limit parameter values established for each affected source with supporting documentation and a description of the procedure used to establish the values.
(3) For each APCD that includes a fabric filter, if a bag leak detection system is used, analysis and supporting documentation demonstrating conformance with EPA guidance and specifications for bag leak detection systems in § 63.8450(e).
(a) You must submit each report in Table 9 to this subpart that applies to you.
(b) Unless the Administrator has approved a different schedule for submission of reports under § 63.10(a), you must submit each report by the date in Table 9 to this subpart and as specified in paragraphs (b)(1) through (5) of this section.
(1) The first compliance report must cover the period beginning on the compliance date that is specified for your affected source in § 63.8395 and ending on either June 30 or December 31. The first reporting period must be at least 6 months, but less than 12 months. For example, if your compliance date is March 1, then the first semiannual reporting period would begin on March 1 and end on December 31.
(2) The first compliance report must be postmarked or delivered no later than July 31 or January 31 for compliance periods ending on June 30 and December 31, respectively.
(3) 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.
(4) Each subsequent compliance report must be postmarked or delivered no later than July 31 or January 31 for compliance periods ending on June 30 and December 31, respectively.
(5) For each affected source that is subject to permitting regulations pursuant to 40 CFR part 70 or 40 CFR part 71, if the permitting authority has established dates for submitting semiannual reports pursuant to 40 CFR 70.6(a)(3)(iii)(A) or 40 CFR 71.6(a)(3)(iii)(A), you may submit the first and subsequent compliance reports according to the dates the permitting authority has established instead of the dates in paragraphs (b)(1) through (4) of this section.
(c) The compliance report must contain the information in paragraphs (c)(1) through (8) of this section.
(1) Company name and address.
(2) Statement by a responsible official with that official's name, title, and signature, certifying that, based on information and belief formed after reasonable inquiry, the statements and information in the report are true, accurate, and complete.
(3) Date of report and beginning and ending dates of the reporting period.
(4) A description of control device maintenance performed while the control device was offline and the kiln controlled by the control device was operating, including the information specified in paragraphs (c)(4)(i) through (iii) of this section.
(i) The date and time when the control device was shut down and restarted.
(ii) Identification of the kiln that was operating and the number of hours that the kiln operated while the control device was offline.
(iii) A statement of whether or not the control device maintenance was included in your approved routine control device maintenance request developed as specified in § 63.8420(d). If the control device maintenance was included in your approved routine control device maintenance request, then you must report the information in paragraphs (c)(4)(iii)(A) through (C) of this section.
(A) The total amount of time that the kiln controlled by the control device operated during the current semiannual compliance period and during the previous semiannual compliance period.
(B) The amount of time that each kiln controlled by the control device operated while the control device was offline for maintenance covered under the routine control device maintenance alternative standard during the current semiannual compliance period and during the previous semiannual compliance period.
(C) Based on the information recorded under paragraphs (c)(4)(iii)(A) and (B) of this section, compute the annual percent of kiln operating uptime during which the control device was offline for routine maintenance using Equation 7.
(5) A report of the most recent burner tune-up conducted to comply with the dioxin/furan work practice standard in Table 3 to this subpart.
(6) If there are no deviations from any emission limitations (emission limits or operating limits) that apply to you, the compliance report must contain a statement that there were no deviations from the emission limitations during the reporting period.
(7) If there were no periods during which the CMS was out-of-control as specified in your OM&M plan, the compliance report must contain a statement that there were no periods during which the CMS was out-of-control during the reporting period.
(8) The first compliance report must contain the startup push rate for each kiln, the minimum APCD inlet temperature for each APCD, and the temperature profile for each kiln without an APCD.
(9) For each deviation that occurs at an affected source, report such events in the compliance report by including the information in paragraphs (c)(9)(i) through (iii) of this section.
(i) The date, time, and duration of the deviation.
(ii) A list of the affected sources or equipment for which the deviation occurred.
(iii) An estimate of the quantity of each regulated pollutant emitted over any emission limit, and a description of the method used to estimate the emissions.
(d) For each deviation from an emission limitation (emission limit or operating limit) occurring at an affected source where you are using a CMS to comply with the emission limitations in this subpart, you must include the information in paragraphs (c)(1) through (4) and (c)(9), and paragraphs (d)(1) through (11) of this section. This includes periods of startup, shutdown, and routine control device maintenance.
(1) The total operating time of each affected source during the reporting period.
(2) The date and time that each CMS was inoperative, except for zero (low-level) and high-level checks.
(3) The date, time, and duration that each CMS was out-of-control, including the pertinent information in your OM&M plan.
(4) Whether each deviation occurred during routine control device maintenance covered in your approved routine control device maintenance alternative standard or during another period, and the cause of each deviation (including unknown cause, if applicable).
(5) A description of any corrective action taken to return the affected unit to its normal or usual manner of operation.
(6) A breakdown of the total duration of the deviations during the reporting period into those that were due to startup, shutdown, control equipment problems, process problems, other known causes, and other unknown causes.
(7) A summary of the total duration of CMS downtime during the reporting period and the total duration of CMS downtime as a percent of the total source operating time during that reporting period.
(8) A brief description of the process units.
(9) A brief description of the CMS.
(10) The date of the latest CMS certification or audit.
(11) A description of any changes in CMS, processes, or control equipment since the last reporting period.
(e) If you have obtained a title V operating permit according to 40 CFR part 70 or 40 CFR part 71, you must report all deviations as defined in this subpart in the semiannual monitoring report required by 40 CFR 70.6(a)(3)(iii)(A) or 40 CFR 71.6(a)(3)(iii)(A). If you submit a compliance report according to Table 9 to this subpart along with, or as part of, the semiannual monitoring report required by 40 CFR 70.6(a)(3)(iii)(A) or 40 CFR 71.6(a)(3)(iii)(A), and the compliance report includes all required information concerning deviations from any emission limitation (including any operating limit), then submitting the compliance report will satisfy any obligation to report the same deviations in the semiannual monitoring report. However, submitting a compliance report will not otherwise affect any obligation you may have to report deviations from permit requirements to the permitting authority.
(f) Within 60 calendar days after the date of completing each performance test (as defined in § 63.2) required by this subpart, you must submit the results of the performance test following the procedure specified in either paragraph (f)(1) or (f)(2) of this section.
(1) For data collected using test methods supported by the EPA's Electronic Reporting Tool (ERT) as listed on the EPA's ERT Web site (
(2) For data collected using test methods that are not supported by the EPA's ERT as listed on the EPA's ERT Web site at the time of the test, you must submit the results of the performance test to the Administrator at the appropriate address listed in § 63.13.
(a) You must keep the records listed in paragraphs (a)(1) through (3) of this section.
(1) A copy of each notification and report that you submitted to comply with this subpart, including all documentation supporting any Initial Notification or Notification of Compliance Status that you submitted, according to the requirements in § 63.10(b)(2)(xiv).
(2) Records of performance tests as required in § 63.10(b)(2)(viii).
(3) Records relating to control device maintenance and documentation of your approved routine control device maintenance request, if you request to use the alternative standard under § 63.8420(d).
(b) You must keep the records required in Table 6 to this subpart to show continuous compliance with each emission limitation and work practice standard that applies to you.
(c) You must also maintain the records listed in paragraphs (c)(1) through (11) of this section.
(1) For each bag leak detection system, records of each alarm, the time of the alarm, the time corrective action was initiated and completed, and a brief description of the cause of the alarm and the corrective action taken.
(2) For each deviation, record the information in paragraphs (c)(2)(i) through (iv) of this section.
(i) The date, time, and duration of the deviation.
(ii) A list of the affected sources or equipment.
(iii) An estimate of the quantity of each regulated pollutant emitted over any emission limit and a description of the method used to estimate the emissions.
(iv) Actions taken to minimize emissions in accordance with § 63.8420(b) and any corrective actions taken to return the affected unit to its normal or usual manner of operation.
(3) For each affected source, records of production rates on a fired-product basis.
(4) Records for any approved alternative monitoring or test procedures.
(5) Records of maintenance and inspections performed on the APCD.
(6) Current copies of your OM&M plan, including any revisions, with records documenting conformance.
(7) Logs of the information required in paragraphs (c)(7)(i) through (iii) of this section to document proper operation of your periodic kiln.
(i) Records of the firing time and temperature cycle for each product produced in each periodic kiln. If all periodic kilns use the same time and temperature cycles, one copy may be maintained for each kiln. Reference numbers must be assigned to use in log sheets.
(ii) For each periodic kiln, a log that details the type of product fired in each batch, the corresponding time and temperature protocol reference number, and an indication of whether the appropriate time and temperature cycle was fired.
(iii) For each periodic kiln, a log of the actual tonnage of product fired in the periodic kiln and an indication of whether the tonnage was below the maximum tonnage for that specific kiln.
(8) Logs of the maintenance procedures used to demonstrate compliance with the maintenance requirements of the periodic kiln work practice standards specified in Table 3 to this subpart.
(9) Records of burner tune-ups used to comply with the dioxin/furan work practice standard for tunnel kilns.
(10) For periods of startup and shutdown, records of the following information:
(i) The date, time, and duration of each startup and/or shutdown period, recording the periods when the affected source was subject to the standard applicable to startup and shutdown.
(ii) For periods of startup, the kiln push rate and kiln exhaust temperature prior to the time the kiln exhaust reaches the minimum APCD inlet temperature (for a kiln with an APCD) or the kiln temperature profile is attained (for a kiln with no APCD).
(iii) For periods of shutdown, the kiln push rate and kiln exhaust temperature after the time the kiln exhaust falls below the minimum APCD inlet temperature (for a kiln with an APCD) or the kiln temperature profile is no longer maintained (for a kiln with no APCD).
(11) All site-specific parameters, temperature profiles, and procedures required to be established or developed according to the applicable work practice standards in Table 3 to this subpart.
(a) Your records must be in a form suitable and readily available for expeditious review, according to § 63.10(b)(1).
(b) As specified in § 63.10(b)(1), you must keep each record for 5 years following the date of each occurrence, measurement, maintenance, corrective action, report, or record.
(c) You must keep each record onsite for at least 2 years after the date of each occurrence, measurement, maintenance, corrective action, report, or record, according to § 63.10(b)(1). You may keep the records offsite for the remaining 3 years.
Table 10 to this subpart shows which parts of the General Provisions in §§ 63.1 through 63.16 apply to you.
(a) This subpart can be implemented and enforced by us, the U.S. EPA, or a delegated authority such as your state, local, or tribal agency. If the U.S. EPA Administrator has delegated authority to your state, local, or tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. You should contact your U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to your state, local, or tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a state, local, or tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of the U.S. EPA and are not transferred to the state, local, or tribal agency.
(c) The authorities that cannot be delegated to state, local, or tribal agencies are as specified in paragraphs (c)(1) through (6) of this section.
(1) Approval of alternatives to the applicability requirements in §§ 63.8385 and 63.8390, the compliance date requirements in § 63.8395, and the non-opacity emission limitations in § 63.8405.
(2) Approval of major changes to test methods under § 63.7(e)(2)(ii) and (f) and as defined in § 63.90.
(3) Approval of major changes to monitoring under § 63.8(f) and as defined in § 63.90.
(4) Approval of major changes to recordkeeping and reporting under § 63.10(f) and as defined in § 63.90.
(5) Approval of an alternative to any electronic reporting to the EPA required by this subpart.
(6) Approval of a routine control device maintenance request under § 63.8420(d).
Terms used in this subpart are defined in the Clean Air Act, in § 63.2, and in this section as follows:
(1) Fails to meet any requirement or obligation established by this subpart including, but not limited to, any emission limitation (including any operating limit) or work practice standard; or
(2) Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart for any affected source required to obtain such a permit.
(1) For a new or reconstructed tunnel kiln controlled with a DLA, the time at which the temperature in the kiln first reaches 260 °C (500 °F) and the kiln contains product; or
(2) for a new or reconstructed tunnel kiln controlled with a DIFF, DLS/FF, or wet scrubber (WS), the time at which the kiln first reaches a level of production that is equal to 75 percent of the kiln design capacity or 12 months after the affected source begins firing BSCP, whichever is earlier.
As stated in § 63.8405, you must meet each emission limit in the following table that applies to you:
As stated in § 63.8405, you must meet each operating limit in the following table that applies to you:
As stated in § 63.8405, you must meet each work practice standard in the following table that applies to you:
As stated in § 63.8445, you must conduct each performance test in the following table that applies to you:
As stated in § 63.8455, you must demonstrate initial compliance with each emission limitation and work practice standard that applies to you according to the following table:
As stated in § 63.8470, you must demonstrate continuous compliance with each emission limitation and work practice standard that applies to you according to the following table:
As stated in § 63.8395, you must meet each compliance date in the following table that applies to you:
As stated in § 63.8480, you must submit each notification that applies to you according to the following table:
As stated in § 63.8485, you must submit each report that applies to you according to the following table:
As stated in § 63.8505, you must comply with the General Provisions in §§ 63.1 through 63.16 that apply to you according to the following table:
This subpart establishes national emission limitations and work practice standards for hazardous air pollutants (HAP) emitted from clay ceramics manufacturing facilities. This subpart also establishes requirements to demonstrate initial and continuous compliance with the emission limitations and work practice standards.
You are subject to this subpart if you own or operate a clay ceramics manufacturing facility that is, is located at, or is part of a major source of HAP emissions according to the criteria in paragraphs (a) and (b) of this section.
(a) A clay ceramics manufacturing facility is a plant site that manufactures pressed floor tile, pressed wall tile, other pressed tile, or sanitaryware (
(b) A major source of HAP emissions is any stationary source or group of stationary sources within a contiguous area under common control that emits or has the potential to emit any single HAP at a rate of 9.07 megagrams (10 tons) or more per year or any combination of HAP at a rate of 22.68 megagrams (25 tons) or more per year.
(a) This subpart applies to each existing, new, or reconstructed affected source at a clay ceramics manufacturing facility.
(b) Each existing, new, or reconstructed ceramic tile roller kiln, sanitaryware tunnel kiln, sanitaryware shuttle kiln, ceramic tile glaze line using glaze spraying, sanitaryware glaze spray booth, ceramic tile spray dryer, and floor tile press dryer is an affected source.
(c) Process units not subject to the requirements of this subpart are listed in paragraphs (c)(1) through (9) of this section.
(1) Tunnel, roller or shuttle kilns that are used exclusively for refiring.
(2) Tunnel, roller or shuttle kilns that are used exclusively for setting glazes on previously fired products.
(3) Glaze spray operations that are used exclusively with those kilns listed in paragraphs (c)(1) and (2) of this section.
(4) Process units listed in paragraphs (c)(1) through (3) of this section that are permitted to, but do not, process first-fire ware, until such time as they begin to process first-fire ware.
(5) Glaze spray operations that on average use wet glazes containing less than 0.1 (weight) percent metal HAP (dry weight basis) per spray booth over an entire calendar year.
(6) Raw material processing and handling.
(7) Wall tile press dryers.
(8) Sanitaryware ware dryers.
(9) Sources covered by subparts JJJJJ and SSSSS of this part.
(d) A source is a new affected source if construction of the affected source began after December 18, 2014, and you met the applicability criteria at the time you began construction.
(e) An affected source is reconstructed if you meet the criteria as defined in § 63.2.
(f) An affected source is existing if it is not new or reconstructed.
(a) You must comply with this subpart no later than the compliance dates in Table 8 to this subpart.
(b) You must meet the notification requirements in § 63.8630 according to the schedule in § 63.8630 and in subpart A of this part. Some of the notifications must be submitted before you are required to comply with the emission limitations in this subpart.
(a) You must meet each emission limit in Table 1 to this subpart that applies to you.
(b) You must meet each operating limit in Table 2 to this subpart that applies to you.
(c) You must meet each work practice standard in Table 3 to this subpart that applies to you.
(a) To meet the emission limitations in Tables 1 and 2 to this subpart, you must use one or more of the options listed in paragraphs (a)(1) and (2) of this section.
(1)
(2)
(b) To meet the work practice standards for affected sanitaryware shuttle kilns, you must comply with the requirements listed in Table 3 to this subpart.
(c) To meet the work practice standards for affected sources during periods of startup and shutdown, you must comply with the requirements listed in Table 3 to this subpart.
(a) You must be in compliance with the emission limitations (including operating limits) in this subpart at all times, except during periods that you are approved for and in compliance with the alternative standard for routine control device maintenance as specified in paragraph (d) of this section, and except during periods of start-up and shutdown, at which time you must comply with the applicable work practice standard specified in Table 3 to this subpart.
(b) At all times, you must operate and maintain any affected source, including
(c) For each affected source that is subject to the emission limits specified in Table 1 to this subpart, you must prepare and implement a written operation, maintenance, and monitoring (OM&M) plan according to the requirements in § 63.8575.
(d) If you own or operate an affected source that is subject to the emission limits specified in Table 1 to this subpart and must perform routine maintenance on the control device for that affected source, you may bypass the source control device and continue operating the affected source subject to the alternative standard established in this paragraph upon approval by the Administrator and provided you satisfy the conditions listed in paragraphs (d)(1) through (5) of this section.
(1) You must request to use the routine control device maintenance alternative standard from the Administrator no later than 120 calendar days before the compliance date specified in § 63.8545. Your request must justify the need for the routine maintenance on the control device and the time required to accomplish the maintenance activities, describe the maintenance activities and the frequency of the maintenance activities, explain why the maintenance cannot be accomplished during source shutdowns, provide information stating whether the continued operation of the affected source will result in fewer emissions than shutting the source down while the maintenance is performed, describe how you plan to comply with paragraph (b) of this section during the maintenance, and provide any other documentation required by the Administrator.
(2) The routine control device maintenance must not exceed 4 percent of the annual operating uptime for each affected source.
(3) The request for the routine control device maintenance alternative standard, if approved by the Administrator, must be incorporated by reference in and attached to the affected source's title V permit.
(4) You must minimize HAP emissions during the period when the affected source is operating and the control device is offline by complying with the applicable standard in Table 3 to this subpart.
(5) You must minimize the time period during which the affected source is operating and the control device is offline.
(e) If you own or operate an affected kiln that is subject to the work practice standard specified in Table 3 to this subpart, you must be in compliance with that work practice standard at all times, except during periods of natural gas curtailment or other periods when natural gas is not available.
(f) You must be in compliance with the provisions of subpart A of this part, except as noted in Table 9 to this subpart.
(a) For each affected source that is subject to the emission limits specified in Table 1 to this subpart, you must prepare, implement, and revise as necessary an OM&M plan that includes the information in paragraph (b) of this section. Your OM&M plan must be available for inspection by the delegated authority upon request.
(b) Your OM&M plan must include, as a minimum, the information in paragraphs (b)(1) through (13) of this section.
(1) Each process and APCD to be monitored, the type of monitoring device that will be used, and the operating parameters that will be monitored.
(2) A monitoring schedule that specifies the frequency that the parameter values will be determined and recorded.
(3) The limits for each parameter that represent continuous compliance with the emission limitations in § 63.8555. The limits must be based on values of the monitored parameters recorded during performance tests.
(4) Procedures for the proper operation and routine and long-term maintenance of each APCD, including a maintenance and inspection schedule that is consistent with the manufacturer's recommendations.
(5) Procedures for installing the CMS sampling probe or other interface at a measurement location relative to each affected process unit such that the measurement is representative of control of the exhaust emissions (
(6) Performance and equipment specifications for the sample interface, the pollutant concentration or parametric signal analyzer, and the data collection and reduction system.
(7) Continuous monitoring system performance evaluation procedures and acceptance criteria (
(8) Procedures for the proper operation and maintenance of monitoring equipment consistent with the requirements in §§ 63.8600 and 63.8(c)(1), (3), (7), and (8).
(9) Continuous monitoring system data quality assurance procedures consistent with the requirements in § 63.8(d)(1) and (2). The owner or operator shall keep these written procedures on record for the life of the affected source or until the affected source is no longer subject to the provisions of this part, to be made available for inspection, upon request, by the Administrator. If the performance evaluation plan in § 63.8(d)(2) is revised, the owner or operator shall keep previous (
(10) Continuous monitoring system recordkeeping and reporting procedures consistent with the requirements in §§ 63.8635 and 63.8640.
(11) Procedures for responding to operating parameter deviations, including the procedures in paragraphs (b)(11)(i) through (iii) of this section.
(i) Procedures for determining the cause of the operating parameter deviation.
(ii) Actions necessary for correcting the deviation and returning the operating parameters to the allowable limits.
(iii) Procedures for recording the times that the deviation began and ended, and corrective actions were initiated and completed.
(12) Procedures for keeping records to document compliance.
(13) If you operate an affected source and you plan to take the source control device out of service for routine maintenance, as specified in § 63.8570(d), the procedures specified in paragraphs (b)(13)(i) and (ii) of this section.
(i) Procedures for minimizing HAP emissions from the affected source during periods of routine maintenance of the source control device when the affected source is operating and the control device is offline.
(ii) Procedures for minimizing the duration of any period of routine maintenance on the source control device when the affected source is operating and the control device is offline.
(c) Changes to the operating limits in your OM&M plan require a new performance test. If you are revising an operating limit parameter value, you must meet the requirements in paragraphs (c)(1) and (2) of this section.
(1) Submit a notification of performance test to the Administrator as specified in § 63.7(b).
(2) After completing the performance test to demonstrate that compliance with the emission limits can be achieved at the revised operating limit parameter value, you must submit the performance test results and the revised operating limits as part of the Notification of Compliance Status required under § 63.9(h).
(d) If you are revising the inspection and maintenance procedures in your OM&M plan, you do not need to conduct a new performance test.
For each affected source that is subject to the emission limits specified in Table 1 to this subpart, you must conduct performance tests within 180 calendar days after the compliance date that is specified for your source in § 63.8545 and according to the provisions in § 63.7(a)(2).
(a) For each affected source that is subject to the emission limits specified in Table 1 to this subpart, you must conduct a performance test before renewing your 40 CFR part 70 operating permit or at least every 5 years following the initial performance test.
(b) You must conduct a performance test when you want to change the parameter value for any operating limit specified in your OM&M plan.
(a) You must conduct each performance test in Table 4 to this subpart that applies to you.
(b) Before conducting the performance test, you must install and calibrate all monitoring equipment.
(c) Each performance test must be conducted according to the requirements in § 63.7 and under the specific conditions in Table 4 to this subpart. Stacks to be tested at sanitaryware manufacturing facilities shall be limited to products of combustion (POC) stacks and those cooling stacks with an oxygen content at or below 20.5 percent.
(d) Performance tests shall be conducted under such conditions as the Administrator specifies to you based on representative performance of the affected source for the period being tested. Representative conditions exclude periods of startup and shutdown. You may not conduct performance tests during periods of malfunction. You must record the process information that is necessary to document operating conditions during the test and include in such record an explanation to support that such conditions represent normal operation. Upon request, you shall make available to the Administrator such records as may be necessary to determine the conditions of performance tests.
(e) You must conduct at least three separate test runs for each performance test required in this section, as specified in § 63.7(e)(3). Each test run must last at least 1 hour.
(f) You must use the data gathered during the performance test and the equations in paragraphs (f)(1) through (4) of this section to determine compliance with the emission limitations.
(1) To determine compliance with the production-based particulate matter (PM) and mercury (Hg) emission limits for ceramic tile roller kilns and sanitaryware tunnel kilns in Table 1 to this subpart, you must calculate your mass emissions per unit of production for each test run using Equation 1:
(2) To determine compliance with the PM emission limits for ceramic tile glaze lines with glaze spraying and sanitaryware glaze spray booths in Table 1 to this subpart, you must calculate your mass emissions per unit of first-fire glaze sprayed (dry weight basis) for each test run using Equation 2:
(3) To determine compliance with the dioxin/furan emission limits for tunnel and roller kilns, ceramic tile spray dryers, and floor tile press dryers in Table 1 to this subpart, you must calculate the sum of the 2,3,7,8-tetrachlorodibenzo-p-dioxin (2,3,7,8-TCDD) toxic equivalents (TEQs) for each test run using Equation 3:
(4) To determine compliance with the health-based standard for acid gas HAP for clay ceramics manufacturing facilities in Table 1 to this subpart, you must:
(i) Calculate the HCl-equivalent emissions for HF and HCl for each tunnel or roller kiln at your facility using Equation 4:
(ii) If you have multiple tunnel or roller kilns at your facility, sum the HCl-equivalent values for all tunnel or roller kilns at the facility using Equation 5:
(iii) Compare this value to the health-based standard in Table 1 to this subpart.
(g) You must establish each site-specific operating limit in Table 2 to this subpart that applies to you as specified in paragraph (g)(1) of this section and in Table 4 to this subpart.
(1)(i) If you do not have an APCD installed on your tunnel or roller kiln, you must calculate the maximum potential HCl-equivalent emissions for HF and HCl for each tunnel or roller kiln at your facility using Equation 6:
(ii) If you have multiple tunnel or roller kilns at your facility, sum the maximum potential HCl-equivalent values for all tunnel or roller kilns at the facility using Equation 7:
(iii) If you have a single tunnel or roller kiln at your facility and the total facility maximum potential HCl-equivalent emissions (E
(iv) If you have multiple tunnel or roller kilns at your facility and the total facility maximum potential HCl-equivalent emissions (E
(2) [Reserved]
(h) For each affected source that is subject to the emission limits specified in Table 1 to this subpart and is equipped with an APCD that is not addressed in Table 2 to this subpart or that is using process changes as a means of meeting the emission limits in Table 1 to this subpart, you must meet the requirements in § 63.8(f) and paragraphs (h)(1) and (2) of this section.
(1) Submit a request for approval of alternative monitoring procedures to the Administrator no later than the notification of intent to conduct a performance test. The request must contain the information specified in paragraphs (h)(1)(i) through (iv) of this section.
(i) A description of the alternative APCD or process changes.
(ii) The type of monitoring device or procedure that will be used.
(iii) The operating parameters that will be monitored.
(iv) The frequency that the operating parameter values will be determined and recorded to establish continuous compliance with the operating limits.
(2) Establish site-specific operating limits during the performance test based on the information included in the approved alternative monitoring procedures request and, as applicable, as specified in Table 4 to this subpart.
(a) You must install, operate, and maintain each CMS according to your OM&M plan and the requirements in paragraphs (a)(1) through (5) of this section.
(1) Conduct a performance evaluation of each CMS according to your OM&M plan.
(2) The CMS must complete a minimum of one cycle of operation for each successive 15-minute period. To have a valid hour of data, you must have at least three of four equally spaced data values (or at least 75 percent if you collect more than four data values per hour) for that hour (not including startup, shutdown, malfunction, out-of-control periods, or periods of routine control device maintenance covered by the routine control device maintenance alternative standard as specified in § 63.8570(d)).
(3) Determine and record the 3-hour block averages of all recorded readings, calculated after every 3 hours of operation as the average of the previous 3 operating hours. To calculate the average for each 3-hour average period, you must have at least 75 percent of the recorded readings for that period (not including startup, shutdown, malfunction, out-of-control periods, or periods of routine control device maintenance covered by the routine control device maintenance alternative standard as specified in § 63.8570(d)).
(4) Record the results of each inspection, calibration, and validation check.
(5) At all times, maintain the monitoring equipment including, but not limited to, maintaining necessary parts for routine repairs of the monitoring equipment.
(b) For each liquid flow measurement device, you must meet the requirements in paragraphs (a)(1) through (5) and paragraphs (b)(1) through (3) of this section.
(1) Locate the flow sensor in a position that provides a representative flowrate.
(2) Use a flow sensor with a minimum measurement sensitivity of 2 percent of the liquid flowrate.
(3) At least semiannually, conduct a flow sensor calibration check.
(c) For each pressure measurement device, you must meet the requirements in paragraphs (a)(1) through (5) and paragraphs (c)(1) through (7) of this section.
(1) Locate the pressure sensor(s) in or as close to a position that provides a representative measurement of the pressure.
(2) Minimize or eliminate pulsating pressure, vibration, and internal and external corrosion.
(3) Use a gauge with a minimum measurement sensitivity of 0.5 inch of water or a transducer with a minimum measurement sensitivity of 1 percent of the pressure range.
(4) Check the pressure tap daily to ensure that it is not plugged.
(5) Using a manometer, check gauge calibration quarterly and transducer calibration monthly.
(6) Any time the sensor exceeds the manufacturer's specified maximum operating pressure range, conduct calibration checks or install a new pressure sensor.
(7) At least monthly, inspect all components for integrity, all electrical connections for continuity, and all mechanical connections for leakage.
(d) For each pH measurement device, you must meet the requirements in paragraphs (a)(1) through (5) and paragraphs (d)(1) through (4) of this section.
(1) Locate the pH sensor in a position that provides a representative measurement of pH.
(2) Ensure the sample is properly mixed and representative of the fluid to be measured.
(3) Check the pH meter's calibration at one point daily.
(4) At least monthly, inspect all components for integrity and all electrical connections for continuity.
(e) For each bag leak detection system, you must meet the requirements in paragraphs (e)(1) through (11) of this section.
(1) Each triboelectric bag leak detection system must be installed, calibrated, operated, and maintained according to the EPA-454/R-98-015, “Fabric Filter Bag Leak Detection Guidance,” (incorporated by reference, see § 63.14). Other types of bag leak detection systems must be installed, operated, calibrated, and maintained in a manner consistent with the manufacturer's written specifications and recommendations.
(2) The bag leak detection system must be certified by the manufacturer to be capable of detecting PM emissions at concentrations of 10 milligrams per actual cubic meter (0.0044 grains per actual cubic foot) or less.
(3) The bag leak detection system sensor must provide an output of relative PM loadings.
(4) The bag leak detection system must be equipped with a device to continuously record the output signal from the sensor.
(5) The bag leak detection system must be equipped with an audible alarm system that will sound automatically when an increase in relative PM emissions over a preset level is detected. The alarm must be located where it is easily heard by plant operating personnel.
(6) For positive pressure fabric filter systems, a bag leak detector must be installed in each baghouse compartment or cell.
(7) For negative pressure or induced air fabric filters, the bag leak detector must be installed downstream of the fabric filter.
(8) Where multiple detectors are required, the system's instrumentation and alarm may be shared among detectors.
(9) The baseline output must be established by adjusting the range and the averaging period of the device and establishing the alarm set points and the alarm delay time according to section 5.0 of the “Fabric Filter Bag Leak Detection Guidance,” (incorporated by reference, see § 63.14).
(10) Following initial adjustment of the system, the sensitivity or range, averaging period, alarm set points, or alarm delay time may not be adjusted except as detailed in your OM&M plan. In no case may the sensitivity be increased by more than 100 percent or decreased more than 50 percent over a 365-day period unless such adjustment follows a complete fabric filter inspection which demonstrates that the fabric filter is in good operating condition, as defined in section 5.2 of the “Fabric Filter Bag Leak Detection Guidance,” (incorporated by reference, see § 63.14). Record each adjustment.
(11) Record the results of each inspection, calibration, and validation check.
(f) For each lime, chemical, or carbon feed rate measurement device, you must meet the requirements in paragraphs (a)(1) through (5) and paragraphs (f)(1) and (2) of this section.
(1) Locate the measurement device in a position that provides a representative feed rate measurement.
(2) At least semiannually, conduct a calibration check.
(g) For each temperature measurement device, you must meet the requirements in paragraphs (a)(1) through (5) and paragraphs (g)(1) through (3) of this section.
(1) Locate the measurement device in a position that provides a representative temperature.
(2) Use a measurement device with a minimum sensitivity of 1 percent of the temperature being measured.
(3) At least semiannually, conduct a calibration check.
(h) Requests for approval of alternate monitoring procedures must meet the requirements in §§ 63.8595(h) and 63.8(f).
(a) You must demonstrate initial compliance with each emission limitation and work practice standard that applies to you according to Table 6 to this subpart.
(b) You must establish each site-specific operating limit in Table 2 to this subpart that applies to you according to the requirements in § 63.8595 and Table 4 to this subpart.
(c) You must submit the Notification of Compliance Status containing the results of the initial compliance demonstration according to the requirements in § 63.8630(e).
(a) You must monitor and collect data according to this section.
(b) Except for periods of monitor malfunctions, associated repairs, and required quality assurance or control activities (including, as applicable, calibration checks and required zero and span adjustments), you must monitor continuously (or collect data at all required intervals) at all times that the affected source is operating. This includes periods of startup, shutdown, malfunction, and routine control device maintenance as specified in § 63.8570(d) when the affected source is operating.
(c) You may not use data recorded during monitoring malfunctions, associated repairs, out-of-control periods, or required quality assurance or control activities for purposes of calculating data averages. You must use all the valid data collected during all other periods in assessing compliance. Any averaging period for which you do not have valid monitoring data and such data are required constitutes a deviation from the monitoring requirements.
(a) You must demonstrate continuous compliance with each emission limit, operating limit, and work practice standard in Tables 1, 2, and 3 to this subpart that applies to you according to the methods specified in Table 7 to this subpart.
(b) For each affected source that is subject to the emission limits specified in Table 1 to this subpart and is equipped with an APCD that is not addressed in Table 2 to this subpart, or that is using process changes as a means of meeting the emission limits in Table 1 to this subpart, you must demonstrate continuous compliance with each emission limit in Table 1 to this subpart, and each operating limit established as required in § 63.8595(h)(2) according to the methods specified in your approved alternative monitoring procedures request, as described in §§ 63.8595(h)(1) and 63.8(f).
(c) You must report each instance in which you did not meet each emission limit and operating limit in this subpart that applies to you. These instances are deviations from the emission limitations in this subpart. These deviations must be reported according to the requirements in § 63.8635(c)(8).
(d) [Reserved]
(e) You must demonstrate continuous compliance with the operating limits in Table 2 to this subpart for visible emissions (VE) from tunnel or roller kilns that are uncontrolled or equipped with DIFF, DLS/FF, or other dry control device by monitoring VE at each kiln stack according to the requirements in paragraphs (e)(1) through (3) of this section.
(1) Perform daily VE observations of each kiln stack according to the procedures of Method 22 of 40 CFR part 60, appendix A-7. You must conduct
(2) If VE are observed during any daily test conducted using Method 22 of 40 CFR part 60, appendix A-7, you must promptly initiate and complete corrective actions according to your OM&M plan. If no VE are observed in 30 consecutive daily Method 22 tests for any kiln stack, you may decrease the frequency of Method 22 testing from daily to weekly for that kiln stack. If VE are observed during any weekly test, you must promptly initiate and complete corrective actions according to your OM&M plan, resume Method 22 testing of that kiln stack on a daily basis, and maintain that schedule until no VE are observed in 30 consecutive daily tests, at which time you may again decrease the frequency of Method 22 testing to a weekly basis.
(3) If VE are observed during any test conducted using Method 22 of 40 CFR part 60, appendix A-7, you must report these deviations by following the requirements in § 63.8635.
(a) You must submit all of the notifications in §§ 63.7(b) and (c), 63.8(f)(4), and 63.9 (b) through (e), (g)(1), and (h) that apply to you, by the dates specified.
(b) You must submit all of the notifications specified in Table 9 to this subpart that apply to you, by the dates specified.
(c) If you are required to conduct a performance test or other initial compliance demonstration as specified in Tables 4 and 6 to this subpart, your Notification of Compliance Status as specified in Table 9 to this subpart must include the information in paragraphs (c)(1) through (3) of this section.
(1) The requirements in § 63.9(h)(2)(i).
(2) The operating limit parameter values established for each affected source with supporting documentation and a description of the procedure used to establish the values.
(3) For each APCD that includes a fabric filter, if a bag leak detection system is used, analysis and supporting documentation demonstrating conformance with EPA guidance and specifications for bag leak detection systems in § 63.8600(e).
(d) If you own or operate an affected kiln that is subject to the work practice standard specified in Item 1 of Table 3 to this subpart, and you intend to use a fuel other than natural gas or equivalent to fire the affected kiln, your notification of alternative fuel use must include the information specified in paragraphs (d)(1) through (5) of this section.
(1) Company name and address.
(2) Identification of the affected kiln.
(3) Reason you are unable to use natural gas or equivalent fuel, including the date when the natural gas curtailment was declared or the natural gas supply interruption began.
(4) Type of alternative fuel that you intend to use.
(5) Dates when the alternative fuel use is expected to begin and end.
(a) You must submit each report in Table 10 to this subpart that applies to you.
(b) Unless the Administrator has approved a different schedule for submission of reports under § 63.10(a), you must submit each report by the date in Table 10 to this subpart and as specified in paragraphs (b)(1) through (5) of this section.
(1) The first compliance report must cover the period beginning on the compliance date that is specified for your affected source in § 63.8545 and ending on either June 30 or December 31. This reporting period must be at least 6 months, but less than 12 months. For example, if your compliance date is March 1, then the first semiannual reporting period would begin on March 1 and end on December 31.
(2) The first compliance report must be postmarked or delivered no later than July 31 or January 31 for compliance periods ending on June 30 and December 31, respectively.
(3) 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.
(4) Each subsequent compliance report must be postmarked or delivered no later than July 31 or January 31 for compliance periods ending on June 30 and December 31, respectively.
(5) For each affected source that is subject to permitting regulations pursuant to 40 CFR part 70 or 40 CFR part 71, and if the permitting authority has established dates for submitting semiannual reports pursuant to 40 CFR 70.6(a)(3)(iii)(A) or 40 CFR 71.6(a)(3)(iii)(A), you may submit the first and subsequent compliance reports according to the dates the permitting authority has established instead of the dates in paragraphs (b)(1) through (4) of this section.
(c) The compliance report must contain the information in paragraphs (c)(1) through (8) of this section.
(1) Company name and address.
(2) Statement by a responsible official with that official's name, title, and signature, certifying that, based on information and belief formed after reasonable inquiry, the statements and information in the report are true, accurate, and complete.
(3) Date of report and beginning and ending dates of the reporting period.
(4) A description of control device maintenance performed while the control device was offline and the affected source controlled by the control device was operating, including the information specified in paragraphs (c)(4)(i) through (iii) of this section.
(i) The date and time when the control device was shut down and restarted.
(ii) Identification of the affected source that was operating and the number of hours that the affected source operated while the control device was offline.
(iii) A statement of whether or not the control device maintenance was included in your approved routine control device maintenance request developed as specified in § 63.8570(d). If the control device maintenance was included in your approved routine control device maintenance request, then you must report the information in paragraphs (c)(4)(iii)(A) through (C) of this section.
(A) The total amount of time that the affected source controlled by the control device operated during the current semiannual compliance period and during the previous semiannual compliance period.
(B) The amount of time that each affected source controlled by the control device operated while the control device was offline for maintenance covered under the routine control device maintenance alternative standard during the current semiannual compliance period and during the previous semiannual compliance period.
(C) Based on the information recorded under paragraphs (c)(4)(iii)(A) and (B) of this section, compute the annual percent of affected source operating uptime during which the control device was offline for routine maintenance using Equation 9.
(5) If there are no deviations from any emission limitations (emission limits or operating limits) or work practice standards that apply to you, the compliance report must contain a statement that there were no deviations from the emission limitations or work practice standards during the reporting period.
(6) If there were no periods during which the CMS was out-of-control as specified in your OM&M plan, the compliance report must contain a statement that there were no periods during which the CMS was out-of-control during the reporting period.
(7) The first compliance report must contain the startup production rate for each ceramic tile roller kiln, floor tile press dryer, ceramic tile spray dryer, and sanitaryware tunnel kiln; the minimum APCD inlet temperature for each APCD; and the temperature profile for each ceramic tile roller kiln, floor tile press dryer, ceramic tile spray dryer, and sanitaryware tunnel kiln without an APCD.
(8) For each deviation that occurs at an affected source, report such events in the compliance report by including the information in paragraphs (c)(8)(i) through (iii) of this section.
(i) The date, time, and duration of the deviation.
(ii) A list of the affected sources or equipment for which the deviation occurred.
(iii) An estimate of the quantity of each regulated pollutant emitted over any emission limit, and a description of the method used to estimate the emissions.
(d) For each deviation from an emission limitation (emission limit or operating limit) occurring at an affected source where you are using a CMS to comply with the emission limitations in this subpart, you must include the information in paragraphs (c)(1) through (4) and (c)(8), and paragraphs (d)(1) through (11) of this section. This includes periods of startup, shutdown, and routine control device maintenance.
(1) The total operating time of each affected source during the reporting period.
(2) The date and time that each CMS was inoperative, except for zero (low-level) and high-level checks.
(3) The date, time, and duration that each CMS was out-of-control, including the pertinent information in your OM&M plan.
(4) Whether each deviation occurred during routine control device maintenance covered in your approved routine control device maintenance alternative standard or during another period, and the cause of each deviation (including unknown cause, if applicable).
(5) A description of any corrective action taken to return the affected unit to its normal or usual manner of operation.
(6) A breakdown of the total duration of the deviations during the reporting period into those that are due to startup, shutdown, control equipment problems, process problems, other known causes, and other unknown causes.
(7) A summary of the total duration of CMS downtime during the reporting period and the total duration of CMS downtime as a percent of the total source operating time during that reporting period.
(8) A brief description of the process units.
(9) A brief description of the CMS.
(10) The date of the latest CMS certification or audit.
(11) A description of any changes in CMS, processes, or control equipment since the last reporting period.
(e) If you have obtained a title V operating permit according to 40 CFR part 70 or 40 CFR part 71, you must report all deviations as defined in this subpart in the semiannual monitoring report required by 40 CFR 70.6(a)(3)(iii)(A) or 40 CFR 71.6(a)(3)(iii)(A). If you submit a compliance report according to Table 8 to this subpart along with, or as part of, the semiannual monitoring report required by 40 CFR 70.6(a)(3)(iii)(A) or 40 CFR 71.6(a)(3)(iii)(A), and the compliance report includes all required information concerning deviations from any emission limitation (including any operating limit), then submitting the compliance report will satisfy any obligation to report the same deviations in the semiannual monitoring report. However, submitting a compliance report will not otherwise affect any obligation you may have to report deviations from permit requirements to the permitting authority.
(f) If you own or operate an affected kiln that is subject to the work practice standard specified in Item 1 of Table 3 to this subpart, and you use a fuel other than natural gas or equivalent to fire the affected kiln, you must submit a report of alternative fuel use within 10 working days after terminating the use of the alternative fuel. The report must include the information in paragraphs (f)(1) through (6) of this section.
(1) Company name and address.
(2) Identification of the affected kiln.
(3) Reason for using the alternative fuel.
(4) Type of alternative fuel used to fire the affected kiln.
(5) Dates that the use of the alternative fuel started and ended.
(6) Amount of alternative fuel used.
(g) Within 60 calendar days after the date of completing each performance test (as defined in § 63.2) required by this subpart, you must submit the results of the performance test following the procedure specified in either paragraph (g)(1) or (g)(2) of this section.
(1) For data collected using test methods supported by the EPA's Electronic Reporting Tool (ERT) as listed on the EPA's ERT Web site (
(2) For data collected using test methods that are not supported by the EPA's ERT as listed on the EPA's ERT Web site at the time of the test, you must submit the results of the performance test to the Administrator at the appropriate address listed in § 63.13.
(a) You must keep the records listed in paragraphs (a)(1) through (3) of this section.
(1) A copy of each notification and report that you submitted to comply with this subpart, including all documentation supporting any Initial Notification or Notification of Compliance Status that you submitted, according to the requirements in § 63.10(b)(2)(xiv).
(2) Records of performance tests as required in § 63.10(b)(2)(viii).
(3) Records relating to control device maintenance and documentation of your approved routine control device maintenance request, if you request to use the alternative standard under § 63.8570(d).
(b) You must keep the records required in Table 7 to this subpart to show continuous compliance with each emission limitation and work practice standard that applies to you.
(c) You must also maintain the records listed in paragraphs (c)(1) through (10) of this section.
(1) For each bag leak detection system, records of each alarm, the time of the alarm, the time corrective action was initiated and completed, and a brief description of the cause of the alarm and the corrective action taken.
(2) For each deviation, record the information in paragraphs (c)(2)(i) through (iv) of this section.
(i) The date, time, and duration of the deviation.
(ii) A list of the affected sources or equipment.
(iii) An estimate of the quantity of each regulated pollutant emitted over any emission limit and a description of the method used to estimate the emissions.
(iv) Actions taken to minimize emissions in accordance with § 63.8570(b) and any corrective actions taken to return the affected unit to its normal or usual manner of operation.
(3) For each affected source, records of production rates on a ton throughput processed basis.
(4) Records for any approved alternative monitoring or test procedures.
(5) Records of maintenance and inspections performed on the APCD.
(6) Current copies of your OM&M plan, including any revisions, with records documenting conformance.
(7) Logs of the information required in paragraphs (c)(7)(i) through (iii) of this section to document proper operation of your sanitaryware shuttle kiln.
(i) Records of the firing time and temperature cycle for each sanitaryware shuttle kiln. If all shuttle kilns use the same time and temperature cycles, one copy may be maintained for each kiln. Reference numbers must be assigned to use in log sheets.
(ii) For each sanitaryware shuttle kiln, a log that details the time and temperature protocol reference number, and an indication of whether the appropriate time and temperature cycle was fired.
(iii) For each sanitaryware shuttle kiln, a log of the actual tonnage of greenware fired in the shuttle kiln and an indication of whether the tonnage was below the maximum tonnage for that specific kiln.
(8) Logs of the maintenance procedures used to demonstrate compliance with the maintenance requirements of the sanitaryware shuttle kiln work practice standards specified in Table 3 to this subpart.
(9) For periods of startup and shutdown, records of the following information:
(i) The date, time, and duration of each startup and/or shutdown period, recording the periods when the affected source was subject to the standard applicable to startup and shutdown.
(ii) For periods of startup, the production rate and exhaust temperature prior to the time the exhaust reaches the minimum APCD inlet temperature (for ceramic tile roller kilns, floor tile press dryers, ceramic tile spray dryers, and sanitaryware tunnel kilns with an APCD) or the temperature profile is attained (for ceramic tile roller kilns, floor tile press dryers, ceramic tile spray dryers, and sanitaryware tunnel kilns with no APCD).
(iii) For periods of shutdown, the production rate and exhaust temperature after the time the exhaust falls below the minimum APCD inlet temperature (for ceramic tile roller kilns, floor tile press dryers, ceramic tile spray dryers, and sanitaryware tunnel kilns with an APCD) or the temperature profile is no longer maintained (for ceramic tile roller kilns, floor tile press dryers, ceramic tile spray dryers, and sanitaryware tunnel kilns with no APCD).
(10) All site-specific parameters, temperature profiles, and procedures required to be established or developed according to the applicable work practice standards in Table 3 to this subpart.
(a) Your records must be in a form suitable and readily available for expeditious review, according to § 63.10(b)(1).
(b) As specified in § 63.10(b)(1), you must keep each record for 5 years following the date of each occurrence, measurement, maintenance, corrective action, report, or record.
(c) You must keep each record onsite for at least 2 years after the date of each occurrence, measurement, maintenance, corrective action, report, or record, according to § 63.10(b)(1). You may keep the records offsite for the remaining 3 years.
Table 11 to this subpart shows which parts of the General Provisions in §§ 63.1 through 63.16 apply to you.
(a) This subpart can be implemented and enforced by us, the U.S. EPA, or a delegated authority such as your state, local, or tribal agency. If the U.S. EPA Administrator has delegated authority to your state, local, or tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. You should contact your U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to your state, local, or tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a state, local, or tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of the U.S. EPA and are not transferred to the state, local, or tribal agency.
(c) The authorities that cannot be delegated to state, local, or tribal agencies are as specified in paragraphs (c)(1) through (6) of this section.
(1) Approval of alternatives to the applicability requirements in §§ 63.8535 and 63.8540, the compliance date requirements in § 63.8545, and the non-
(2) Approval of major changes to test methods under § 63.7(e)(2)(ii) and (f) and as defined in § 63.90.
(3) Approval of major changes to monitoring under § 63.8(f) and as defined in in § 63.90.
(4) Approval of major changes to recordkeeping and reporting under § 63.10(f) and as defined in § 63.90.
(5) Approval of an alternative to any electronic reporting to the EPA required by this subpart.
(6) Approval of a routine control device maintenance request under § 63.8570(d).
Terms used in this subpart are defined in the Clean Air Act, in § 63.2, and in this section as follows:
(1) Fails to meet any requirement or obligation established by this subpart including, but not limited to, any emission limitation (including any operating limit) or work practice standard; or
(2) Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart for any affected source required to obtain such a permit.
As stated in § 63.8555, you must meet each emission limit in the following table that applies to you:
As stated in § 63.8555, you must meet each operating limit in the following table that applies to you:
As stated in § 63.8555, you must comply with each work practice standard in the following table that applies to you:
As stated in § 63.8595, you must conduct each performance test in the following table that applies to you:
As stated in § 63.8595(f)(3), you must demonstrate initial compliance with each dioxin/furan emission limit that applies to you by calculating the sum of the 2,3,7,8-TCDD TEQs using the TEFs in the following table:
As stated in § 63.8605, you must demonstrate initial compliance with each emission limitation and work practice standard that applies to you according to the following table:
As stated in § 63.8620, you must demonstrate continuous compliance with each emission limitation and work practice standard that applies to you according to the following table:
As stated in § 63.8545, you must meet each compliance date in the following table that applies to you:
As stated in § 63.8630, you must submit each notification that applies to you according to the following table:
As stated in § 63.8635, you must submit each report that applies to you according to the following table:
As stated in § 63.8655, you must comply with the General Provisions in §§ 63.1 through 63.16 that apply to you according to the following table:
National Park Service, Interior.
Proposed rule.
We are proposing to update our service-wide regulations governing the exercise of non-federal oil and gas rights, to improve our ability to protect park resources, values, and visitors from potential impacts associated with non-federal oil and gas operations located within National Park Service units. The proposed rule would also make the regulations consistent with existing policies and practices, and update the format to improve clarity and simplify application and compliance for oil and gas operators and our employees.
Comments on the proposed rule must be received by December 28, 2015. Comments on the information collection requirements must be received by November 25, 2015
If you wish to comment on this proposed rule, you may submit your comments, identified by Regulation Identifier Number (RIN) 1024-AD78, by either of the following methods:
•
•
• Send your comments and suggestions on the information collection requirements to the Desk Officer for the Department of the Interior at OMB-OIRA at (202) 395-5806 (fax) or
Edward O. Kassman, Jr., Geologic Resources Division, National Park Service, P.O. Box 25287, Denver, Colorado 80225;
The National Park Service (NPS) is proposing to update the existing regulations at 36 CFR part 9, subpart B (9B regulations), which govern the exercise of non-federal oil and gas rights in NPS units, to improve the effectiveness of the regulations in protecting park resources and values and to improve the clarity of the regulations for both operators and the NPS.
Key updates to the regulations would include:
• Elimination of two regulatory provisions that exempt approximately 60% of the oil and gas operations located within the national park system;
• Elimination of the cap on financial assurance (bonding);
• Application of the penalty provisions of 36 CFR 1.3;
• Incorporation of fees for new access beyond that held as part of the operator's mineral right;
• Addition of a new well-plugging provision;
• Clarification that access to oil and gas properties in Alaska is controlled by 43 CFR part 36, which implements provisions of the Alaska National Interest Lands Conservation Act;
• Clarification of well stimulation information requirements and operating standards;
• Incorporation of a new format that makes it easier to identify the information requirements for particular types of operations;
• Incorporation of a new format for operating standards so that both the NPS and the operator can readily identify what standards apply to particular operations;
• Elimination of redundant definitions and provisions;
• Consolidation of existing regulatory provisions; and
• Codification of some existing agency policies and practices.
A detailed discussion of all changes to the regulations is contained in the section-by-section analysis.
On December 8, 1978, the NPS promulgated the current regulations in 36 CFR part 9, subpart B (43 FR 57825), which govern the exercise of non-federal oil and gas rights in units of the National Park System (NPS units).
The current 9B regulations apply to all activities associated with non-federal oil and gas exploration and development inside NPS unit boundaries where access is on, across, or through federally owned or controlled lands or waters (36 CFR 9.30(a)). Under the existing regulations, an operator must obtain our approval of a proposed plan of operations before commencing non-federal oil and gas operations in an NPS unit (36 CFR 9.32(b)). This requirement covers exploration, drilling, production, transportation, plugging, and reclamation operations.
The plan of operations is a prospective operator's blueprint of all intended activities and is our primary means for evaluating the operation's potential adverse impacts on park resources and values. It must show that the operator is exercising a bona fide property right to non-federal oil and gas in an NPS unit (36 CFR 9.36(a)(2)). The plan of operations must also describe:
• The proposed operation, including the equipment, methods, and materials to be used in the operation;
• Access to the site;
• Mitigation measures that will be implemented to protect NPS resources and values;
• Environmental conditions in the vicinity of the site;
• Alternatives to the proposal; and
• The environmental impacts of the proposed operation (36 CFR 9.36(a)).
In addition to the plan of operations, the operator must submit a performance bond to ensure that funds are available to reclaim a site if the operator defaults on its obligations under an approved plan (36 CFR 9.48). In order to make the regulatory process as efficient and transparent as possible, we work collaboratively with operators early in their planning process to provide guidance on information requirements, alternative area of operations locations, and potential mitigation and avoidance measures.
As part of our approval process, we coordinate and consult with a variety of
Operators conducting non-federal oil and gas operations in NPS units must also comply with all applicable state and local laws (36 CFR 9.36(a)(15)). Although state oil and gas regulations may contain provisions designed to protect natural resources (
When the NPS Regional Director has determined that the proposal meets the requirements contained in the regulations and the NPS has completed the required environmental compliance, the Regional Director will approve the plan (36 CFR 9.37). The approved plan is the operator's authorization to conduct its operation in an NPS unit (36 CFR 9.32(a)).
During the life of an oil or gas operation in a park, the park manager has the authority to monitor and ensure compliance with the approved plan of operations (36 CFR 9.37(f)). If there is a change in circumstances, the NPS or the operator can make a request to supplement and modify the plan (36 CFR 9.40). The 9B regulations authorize us to enforce the terms of the plan, as may be necessary, by suspending operations or revoking plan approval (36 CFR 9.51). The operator may appeal a Regional Director's decision (36 CFR 9.49).
The authority to promulgate these regulations is the statute commonly known as the NPS Organic Act (54 U.S.C. 100101
In addition, the enabling legislation for several NPS units contains specific provisions authorizing us to regulate the exercise of non-federal oil and gas rights. In the authority section of the proposed rule, we list the individual enabling statutes that address non-federal oil and gas rights in specific NPS units.
Our authority to promulgate the 9B regulations has been recognized as a valid exercise of NPS's Organic Act authority by a U.S. District Court and the Fifth Circuit Court of Appeals.
As explained below, the NPS proposed rule uses most of the language from BLM's hydraulic fracturing information requirements at 43 CFR 3162.3-3(d)(1) through (7), which BLM recently promulgated under authority of the Mineral Leasing Act, 30 U.S.C. 189, the Federal Land Policy and Management Act, 43 U.S.C. 1701
For NPS units in Alaska that were established under the Alaska National Interest Lands Conservation Act (ANILCA), access to non-federal property is governed by the regulations at 43 CFR part 36, which implement section 1110(b) of ANILCA. This regulation gives operators the option to file for such access as part of their plans of operations, but they also may use a SF 299 as provided in the 43 CFR part 36 regulations. This is similar to the process applicable to mining claims under those regulations and the NPS regulations at 36 CFR part 9, subpart A. We also note that because these regulations are generally applicable to NPS units nationwide and to non-federal interests in those units, they are not “applicable solely to public lands within [units established under ANILCA],” and thus are not affected by section 103(c) of ANILCA.
A unique provision exists under the Big Cypress National Preserve Addition Act of 1988, at 16 U.S.C. 698m-4. This provision states that the Secretary shall promulgate rules and regulations governing the exploration for and development and production of non-Federal interests in oil and gas located within the boundaries of the Big Cypress National Preserve and the Addition, and that such rules and regulations may be made by appropriate amendment to or in substitution of the rules and regulations respecting non-Federal oil and gas rights (currently codified at 36 CFR 9.30
The Addition Act also authorizes the Secretary prior to the promulgation of rules or regulations under this section, to enter into interim agreements with owners of non-Federal oil and gas interests governing the conduct of oil and gas exploration, development or production activities within the boundary of the Addition. 16 U.S.C. 698m-4(e).
Consistent with that authority, the present oil and gas operations within the Addition Area are controlled under the terms of the
Non-federal oil and gas rights exist within NPS units in situations where
• The United States acquired the property from a grantor that did not own the oil and gas interest; or
• The United States acquired the property from a grantor that reserved the oil and gas interest from the conveyance.
Non-federal oil and gas interests can be held by individuals; nonprofit organizations; corporations, including Alaska Native corporations; or state and local governments. Interests in non-federal oil and gas are property rights that may only be taken for public use with payment of just compensation in accordance with the Fifth Amendment of the U.S. Constitution. Accordingly, from their initial promulgation, the existing regulations at 36 CFR 9.30(a) have stated that they are “not intended to result in the taking of a property interest, but rather to impose reasonable regulations on activities that involve and affect federally owned lands.” The proposed rule includes this same provision.
There are currently 534 non-federal oil and gas operations in a total of 12 NPS units. These units are: Alibates Flint Quarries National Monument (Texas), Aztec Ruins National Monument (New Mexico), Big Cypress National Preserve (Florida), Big Thicket National Preserve (Texas), Big South Fork National River and Recreation Area (Tennessee/Kentucky), Cumberland Gap National Historical Park (Tennessee), Cuyahoga Valley National Park (Ohio), Gauley River National Recreation Area (West Virginia), Lake Meredith National Recreation Area (Texas), New River Gorge National River (West Virginia), Obed Wild and Scenic River (Tennessee), and Padre Island National Seashore (Texas).
Based on the presence of split estates, exploration and production occurring on adjacent or nearby lands, and likely future increases in energy prices, we believe that non-federal oil and gas operations within park boundaries could affect up to 30 additional NPS units.
The types of non-federal oil and gas operations conducted in NPS units generally include: Geophysical (seismic) exploration; exploratory well drilling; field development well drilling; oil and gas well production operations, including installation and operation of well flowlines and gathering lines; well plugging and abandonment; and site reclamation.
Oil and gas activities may adversely impact NPS unit resources in some or all of the following manners:
• Surface water quality degradation from spills, storm water runoff, erosion, and sedimentation. Through site inspections the NPS has documented 26 instances of sites with surface contamination;
• Soil and ground water contamination from existing drilling mud pits, poorly constructed wells, spills, and leaks. Through site inspections the NPS has documented 47 instances of sites with wellhead leaks, pump jack leaks, tank battery leaks, and operations and maintenance spills;
• Air quality degradation from dust, natural gas flaring, hydrogen sulfide gas, and emissions from production operations and vehicles. Through site inspections the NPS has documented 14 instances of notable odors emanating from the wellhead;
• Increased noise from seismic operations, blasting, construction, oil and gas drilling and production operations. Through site inspections the NPS has documented 6 instances of noise issues from well pad equipment;
• Noise and human presence effects on wildlife behavior, breeding, and habitat utilization;
• Disruption of wildlife migration routes;
• Adverse effects on sensitive and endangered species. Through site inspections the NPS has documented 15 sites with sensitive species or habitat;
• Viewshed intrusion by roads, traffic, drilling equipment, production equipment, pipelines, etc.;
• Night sky intrusion from artificial lighting and gas flares;
• Disturbance to archeological and cultural resources from blasting associated with seismic exploration and road/site preparation, maintenance activities, or by spills. Through site inspections the NPS has documented 6 sites with associated cultural resources.; and
• Visitor safety hazards from equipment, pressurized vessels and lines, presence of hydrogen sulfide gas, and leaking oil and gas that can create explosion and fire hazards. Through site inspections the NPS has documented 62 instances of visitor safety hazards.
Examples of documented impacts can be found in many parks. For example, at Big South Fork natural gas fired pump jack engines have caused notable noise at visitor overlooks that are 2 to 3 miles away. Simple mitigation such as a corrugated steel fence would abate this impact, however, due to the well's grandfathered status; the NPS is unable to require this mitigation and forced to accept this unnecessary impact.
Another example of unnecessary impacts can be found at Aztec Ruins National Monument where an operation exempt from the 9B regulations due to the grandfathered exemption contained a road that traversed an undeveloped and buried archeological site. When this well lost its grandfathered status, the NPS was able to require the new operator to conduct a cultural resource survey to determine the impacts to the site. As mitigation the operator installed a layer of dirt between the resource and the road base to protect the resources. Unfortunately, in this case the damage was already done and it did not make sense to move the road but the resource is better preserved for future enjoyment.
On November 25, 2009, we issued an Advance Notice of Proposed Rulemaking (ANPRM) (74 FR 61597) to assist us in developing the proposed rule. The ANPRM and the analysis of public comments for the ANPRM are available online at
(1) Regulation of previously exempt operations;
(2) Directional drilling;
(3) Operating standards;
(4) Financial assurance;
(5) Access fees; and
(6) Assessments for non-compliance.
We received comments from oil and gas owners and operators (2), Alaska Native Corporations (2), unaffiliated private citizens (6), and environmental organizations (10), including 1,477 comments from members of the Sierra Club in the form of personal comments added to a form letter.
The majority of commenters were in favor of strengthening and expanding the regulations to better protect park resources and values. Some commenters requested that we not expand the scope of the 9B regulations, while others questioned the legality of regulating non-federal oil and gas operations in parks. Additionally, some comments asked us to consider the impacts of potential natural gas development of the Marcellus Shale formation in the eastern United States.
More information on the ANPRM and these comments is available at
We have prepared a draft environmental impact statement (DEIS), which will be published shortly after this proposed rule. The DEIS will be available for review and public comment at
The DEIS describes three alternatives: Alternative A—No action; Alternative B—preferred alternative and proposed rule; and Alternative C. Alternative C would include all the proposed changes in alternative B, except that it would expand NPS jurisdiction under the regulations to encompass surface and subsurface directional drilling operations outside the boundary of the park; would provide an operator, under limited circumstances, with an exemption to the operations permit requirement for operations located wholly on non-federally owned land within a park boundary; and would hold mineral owners and operators jointly and severally liable for compliance with an operations permit or other applicable provisions of the 9B regulations.
The existing 9B regulations apply only when an operator's “access [is] on, across, or through federally owned or controlled lands or waters.” Seventy-eight operations (15% of all oil and gas operations in NPS units) do not require access on, across, or through federally owned or controlled lands or waters and are thus outside the scope of the 9B regulations. These operators are not required to obtain an approved NPS plan of operations, post financial assurance, or otherwise comply with this subpart to protect park resources and values. However, our experience over the past three decades has demonstrated that these operations have the potential to have adverse effects on NPS resources, values, and visitor health and safety. Through site inspections, the NPS has found at least 10 instances of sites with oil spills or leaks resulting in contamination of soils and water.
For example, a poorly operated oil tank battery within the boundary of Big Thicket National Preserve that is currently exempt because it does not require access across federally owned land has contaminated storm water runoff that runs into adjacent federally owned land near Village Creek. Another example is a large compressor that was located on nonfederal lands within the boundary of Big South Fork National River and Recreation Area. The compressor causes unabated noise for which the NPS is unable to require mitigation due to the current scope of the regulations.
In 1978 the NPS made a policy choice to limit the application of its non-federal-oil-and-gas regulatory program to operators requiring access on, across, or through federally owned or controlled lands or waters. That choice was not required by any statutory provision. The NPS now believes that it is appropriate to revisit and modify the application of its regulations.
Under the proposed rule at §§ 9.30 through 9.33, all operators conducting operations within NPS boundaries would be subject to permit requirements. The permitting process would include an evaluation to determine whether, and the extent to which, such operations would have an adverse effect on federally owned or administered lands, waters, or resources of NPS units, visitor uses or experiences, or visitor or employee health and safety. These operations would also be subject to measures to mitigate such adverse effects, as well as to the financial assurance and reclamation requirements.
Proposed § 9.30(c) retains the existing regulatory language from § 9.30(a) that the intention of this subpart is to reasonably regulate such activities, but not to result in a taking of private property. Although the NPS has placed park-protecting mitigation measures on proposed operations, we have never, in the more than 35 years of applying this subpart, denied prospective operators access to exercise their non-federal oil and gas rights. We will continue to work with operators to ensure they have reasonable access to their operations and that park resources and values are protected without resulting in a taking in violation of the Fifth Amendment of the United States Constitution.
The existing regulations inconsistently describe the interests that the regulations are designed to protect. The proposed rule would clarify and consistently state that the 9B regulations are designed to protect federally owned or administered lands, waters, or resources of NPS units, visitor uses or experiences, and visitor or employee health and safety. The proposed rule would replace the phrase “federally owned or controlled” with the phrase “federally owned or administered” to be consistent with the terminology we use in our general regulations, at 36 CFR 1.2, and 36 CFR 1.4(a) (definition of “National Park System”), and in our NPS Management Policies (2006).
Proposed § 9.31(a) applies these regulations to all nonfederal oil and gas operations within the boundary of an NPS unit. Proposed § 9.31(b) covers those operations that become part of an NPS unit either by boundary expansion or establishment of a new NPS unit. Proposed § 9.31(c) covers those operations that have accessed oil and gas rights from a surface location outside the park boundary but due to a boundary expansion or establishment of a new unit, the surface location is now within an NPS unit. Those operations covered under § 9.31(b) and (c) would be required to follow the same requirements and procedures as previously exempt operations at §§ 9.50 through 9.53.
Proposed § 9.32(a) would clarify that an operator must have either a temporary access permit or an operations permit before conducting either reconnaissance surveys or operations in an NPS unit.
The existing regulation contains a requirement that operators demonstrate that they hold valid rights to conduct activities. The proposed rule would move this requirement to § 9.32(b) under “Scope and Purpose” to clarify that all operators must demonstrate “up front” that they hold a valid existing right to conduct operations in an NPS unit. Unless an operator can demonstrate a valid existing right to conduct operations, we would not undertake formal review of an operator's operations permit application.
The proposed rule would delete existing § 9.30(b) and (c). We view these sections as advisory and more appropriate for inclusion in guidance materials that we will develop following the promulgation of this subpart.
Proposed § 9.33(a) would authorize an operator that currently holds an approved plan of operations under the existing regulations to continue operations, subject to the applicable provisions of the regulations.
Proposed § 9.33(b) would authorize an operator that remains exempt from the plan of operations requirement because it is currently accessing oil and gas rights inside a park boundary from a surface location outside the park boundary to continue operations, subject to the General Terms and Conditions and the Compliance Procedure provisions of the regulations.
The proposed rule would organize the definitions in alphabetical order to make this section more user-friendly. The proposed rule would also delete several redundant definitions because the same terms are defined at 36 CFR 1.4. The definitions proposed for deletion are: “Secretary” (existing § 9.31(a)), “Director” (existing § 9.31(b)), “Person” (existing § 9.31(e)), and “Superintendent” (existing § 9.31(f)). The proposed rule also deletes two definitions that are no longer applicable: “Commercial Vehicle” (existing § 9.31(g)) and “Statement for Management” (existing § 9.31(o)).
The proposed rule would add a new term, “Area of Operations,” to the Definition section to replace the term “Site,” at existing § 9.31(m). The new term would identify all areas where an operator is authorized to conduct its activities, including access to the operations site.
The proposed rule would expand the definition of “Contaminating Substances,” at existing § 9.31(n), to include other toxic or hazardous substances. The NPS is proposing to remove the term “waste” from this definition and include a new separate definition of waste in the proposed rule.
The proposed rule would revise the definition of the term “Unit” to “NPS unit” and make this term the same as “National Park System (Park Area)” found at 36 CFR 1.4(a).
The proposed rule would change the definition of “Operations” at existing § 9.31(c), to clarify that “access” includes “any means of ingress to or egress from an area of operations.” The NPS intends this change to cover any and all types of access, including access via aircraft, to and from an area of operations. For access via aircraft, the NPS regulates only the time, place, and manner of aircraft landing on NPS administered lands or waters within an NPS unit. The NPS does not regulate aircraft overflight under the 9B regulations. Accordingly, the NPS would remove existing § 9.32(c), which regulates 9B aircraft access. The proposed rule would also delete existing § 9.32(d). This access is controlled by NPS commercial vehicle regulations at 36 CFR 5.6(c).
The definition of “Operations” also clarifies that the operation of a flowline or a gathering line is included within this definition, but not the installation, operation, or maintenance of oil and gas pipelines that are located within the park under authority of a deeded easement or other right-of-way, which are not covered by the 9B regulations.
The proposed rule would add a new term “Operations Permit” as the permitting vehicle for all operations. An operations permit will be a special use permit subject to cost recovery under 54 U.S.C. 103104, which authorizes the NPS to recover all costs associated with providing necessary services associated with special use permits.
The proposed rule would update the definition of “Operator” at existing § 9.31(d) by clarifying that responsibilities and liability under this subpart can attach to the operator or the operator's agents, assignees, designees, lessees, or representatives.
The proposed rule defines “owner” as a “person” which incorporates the definition of “person” from § 1.4.
The proposed rule adds a new definition of “Previously Exempt Operation” to clarify which types of operations are covered by proposed §§ 9.50 through 9.53. This definition does not include those operations where the operator was granted an exemption under existing § 9.32(e) to the plan of operations requirement by the NPS because it accessed oil and gas rights inside the park boundary from a surface location outside the park boundary (which are covered by proposed § 9.33(b)).
The proposed rule would add a new term “Reconnaissance Survey” to clarify that reconnaissance surveys do not include surface disturbance activities, except minimal disturbance necessary to perform surveys.
The proposed rule would add a new term “Right to Operate” that incorporates much of the language in existing § 9.36(a)(2) (right to operate description for a Plan of Operations). The new definition would clarify that an operator's right-to-operate documentation must demonstrate the proposed activities are within the scope of that right.
The proposed rule would add a new term “Technologically feasible, least damaging methods” to describe the general standard that all operators must satisfy when meeting applicable operating standards.
The proposed rule would add a new term “Temporary Access Permit” to clarify that under the proposed rule the NPS would grant temporary access only for reconnaissance surveys and to collect basic information necessary to prepare a permit application.
The proposed rule would add a new term “Third-Party Monitor” to identify a third-party monitor's necessary qualifications.
The proposed rule would add a new term “Usable water” to describe the criteria that the NPS uses to identify protected sources of groundwater.
The proposed rule would add a new term “Waste” to differentiate between “waste” and “contaminating substances.”
The proposed rule would add a new set of terms “We and us” to refer to the National Park Service.
The proposed rule would add a definition of “You” to be consistent with the plain language format of this subpart.
The proposed rule would create a new section “Previously Exempt Operations” to describe the process for bringing all previously exempt operations into compliance with the proposed rule. These include operations that do not require access on, across, or through federal lands (15% of total operations are currently exempt due to existing § 9.30, see above discussion) and grandfathered operations (45% of total
Under existing § 9.33, operators who were conducting operations at the time the regulations became effective (January 8, 1979) and who had already obtained a valid federal or state permit were “grandfathered.” These operators were not required to obtain an approved plan of operations; comply with NPS operating standards, including reclamation of their area of operations to NPS standards; or post a reclamation bond. The Superintendent does have authority under existing § 9.33(c) to suspend grandfathered operations if there is an “immediate threat of significant injury to federally owned or controlled lands or waters.” The NPS has used this authority, in limited cases, to suspend grandfathered operations—suspensions that would not have been necessary if the operators were proactively meeting NPS standards. For example, at Big Thicket National Preserve, the NPS suspended two grandfathered operations that were causing unnecessary impacts, including poor spill prevention equipment and methods resulting in localized contamination to soils, lack of proper vegetation control that increased risk of fire, and poor site security that presented risks to visitor health and safety. Under existing § 9.33(a)(1), when the existing federal or state permit expires and the operator is issued a new permit, the operator then becomes subject to all provision of the 9B regulations.
In 1978 the NPS expected that over time the permits associated with these operators would expire and that the operators would then be required to come into compliance with the 9B regulations. However, the rate of permit expiration has been much slower than anticipated. This has left approximately 45% of operations (241 wells service-wide) still exempt from the regulations over thirty years later, causing unnecessary and readily avoidable impacts to NPS-administered resources and values. For example, through site inspections, the NPS has found 20 instances of hydrocarbon spills and leaks, 3 instances of gas venting, 2 instances of notable noise issues, and 3 instances of notable hydrocarbon odors emanating from the well site. The grandfather exemption is not required by statute, and was a discretionary policy choice by the NPS to provide for a “smooth and fair phase in of [the 1978] regulations.” (43 FR 57822)
This rulemaking is intended to ensure that all operations within NPS units are conducted in a manner that protects park resources and values. A majority of comments to the ANPRM regarding previously exempt operations suggested that to achieve this goal, the NPS's new rule should require previously exempt operators to obtain an operations permit. The NPS agrees, and has tailored the process for obtaining an operations permit to the specific circumstances presented by previously exempt operations.
Proposed § 9.50(a) would establish that previously exempt operators must obtain an Operations Permit.
In proposed § 9.51, the NPS describes the information that a previously exempt operator would be required to submit to the NPS to obtain an operations permit. For a new oil and gas operation in an NPS unit, the NPS requires an operator to submit the information necessary for the NPS to select the least damaging locations for its access route, drilling site, production facilities, and gathering-line routes. However, for previously exempt operations, the operator's well has already been drilled and the area of operations (access route, well site, production facilities, and routes for gathering lines) has already been established. Therefore, under proposed § 9.51, within 90 days after the effective date of this subpart, operators must provide the NPS with information that would enable the NPS to evaluate the previously exempt operation to determine whether these operations are being conducted in compliance with NPS operating standards. This information is also needed for future monitoring of the approved operations to ensure compliance with NPS operating standards. The information requirements under this proposed section also require operators to submit information if they intend to change existing operations (
Once the operator provides the information required under proposed § 9.51, the NPS would review the operations permit application under proposed § 9.52, which states that the NPS will review the application under the same standards that apply to new operations, §§ 9.100 through 9.104 (Operations Permit: Application Review Process).
Under proposed § 9.53, from the effective date of the final rule and during the time a previously exempt operator's application is under consideration for approval by the NPS, the continuation of operations would be limited to those activities and the specific area of disturbance as of the effective date. Previously exempt operations would also become subject to the General Terms and Conditions at proposed §§ 9.120 through 9.122 and the Prohibitions and Penalties at proposed §§ 9.180 through 9.182. Finally, proposed § 9.53(a)(2) provides that except in an emergency, the NPS would not take any steps to directly regulate the previously exempt operator's activities under proposed §§ 9.180 through 9.182 within 90 days after the effective date of the final rule.
Existing § 9.38(a)(2) (temporary approval for the continuance of existing operations) and existing § 9.38(b) (temporary approval of new operations) would not be retained in the proposed rule. Because the proposed rule would make all operations subject to the 9B regulations, including (after a 90-day grace period) previously exempt operations, temporary approval of existing operations is no longer applicable. Existing § 9.38(b) would also be deleted because the provision has rarely been used and the NPS does not anticipate a need for temporary approval of new operations.
Proposed § 9.60 would focus solely on the information requirements and approval process for obtaining temporary approval to collect basic information to develop the information required to obtain an Operations Permit. Proposed § 9.61 identifies the information necessary for the NPS to evaluate the operator's proposal to collect this information. This includes intended future operations, so the NPS can determine what information is available and what additional information needs to be gathered. Proposed § 9.61(d) would require that the operator describe the qualifications of the specialist who will perform the reconnaissance survey. The requirement to hire a qualified specialist codifies existing NPS guidance and is included in the definition of “reconnaissance survey” so that information and conclusions are accurate and verifiable.
Proposed § 9.62 would clarify that under a Temporary Access Permit, an operator may not engage in ground disturbing activities unless they are minimal and necessary to conduct the surveys.
Under proposed § 9.63, Temporary Access Permits would be issued for a period not to exceed 60 days and may be extended for a reasonable additional period when justified by an operator.
Existing § 9.32(e) allows operators to apply for an exemption from the regulations if they directionally drill from a surface location outside an NPS unit to reach a bottom hole located within NPS boundaries. This exemption is available if operations pose no significant threat of damage to NPS resources, both surface and subsurface, resulting from surface subsidence, fracture of geological formations with resultant fresh water aquifer contamination, or natural gas escape. Surface activities located outside the NPS boundary are not within the scope of the existing 9B regulation. Under these regulations, regulatory authority over these operations continues to begin at the subsurface point where the proposed operation (borehole) crosses the park boundary and enters federally owned or controlled lands or water, and applies to all infrastructure and activities within the NPS unit.
The availability of the exemption provides an incentive for operators to locate surface facilities outside an NPS unit. Location of operations outside an NPS unit generally avoids direct impacts to NPS resources and values. Therefore, proposed § 9.72 retains a similar exemption.
The NPS proposes to retain the “no significant threat of damage” review standard for exemption applications. Proposed § 9.70 updates and clarifies the review standards for exemption applications. If an operator is exempt from the Operations Permit requirement, it would still be subject to the General Terms and Conditions and the Prohibitions and Penalties provisions in the regulations. The proposed rule also addresses circumstances under which the method of operation or environmental conditions of an operation changes.
Proposed § 9.71 identifies the information an operator would be required to submit to the NPS to be considered for an exemption. Proposed § 9.71 directs operators to those information requirements, located at proposed § 9.89, applicable to proposed hydraulic fracturing operations.
Proposed § 9.72 describes how the NPS would review and consider information submitted by the operator under this section.
Proposed § 9.73 describes requirements that an operator still must meet if it does not need an operations permit.
The proposed rule at §§ 9.80 through 9.90 reorganizes information requirements for each type of operation. The proposed rule would separate information requirements into the following categories: § 9.83, information that must be included in all applications; § 9.87, additional information that must be included for a proposed geophysical exploration; § 9.88, additional information that must be included for a proposed drilling operations; § 9.89 additional information must be included for a proposed well stimulation operations, including hydraulic fracturing; and, § 9.90 additional information that must be included for a proposed production operations.
Some of the information requirements in the existing 9B regulation are minimally described. The NPS provided additional information on some of those information requirements in the NPS's 2006 9B Operator's Handbook. The NPS intends to clarify all information requirements in the proposed rule.
Some of the existing information requirements were incorporated into the proposed rule without substantial change. However, the NPS is proposing to clarify the following information requirements:
Existing regulation § 9.83 limits identification of an operation's key personnel to the operator, owners, and lessees. To ensure that the NPS has all appropriate contact information, proposed § 9.83(b) requires that operators also identify agents, assignees, designees, contractors, and other representatives.
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Proposed § 9.84 requires an operator to specify site security measures and an operation's power sources and transmission systems.
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Proposed § 9.83(e) would clarify and expand upon the existing § 9.36(a)(5). It would require information regarding the source, transportation method and quantity of water to be used in addition to how the operator will manage waste water.
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Proposed § 9.85 would codify the existing practice of requiring operators to include within their permit application natural resource and cultural resource survey reports for the operator's proposed area of operations.
Proposed § 9.85 would require an operator to describe steps proposed to mitigate adverse environmental impacts and list and discuss the impacts that cannot be mitigated. Additionally, operators are required to describe all alternative technologically feasible, least damaging methods that were considered. Technologically feasible, least damaging alternatives are those alternatives that are viable (based on economic, environmental, and technological considerations) and conform to federal, state, and local laws and regulations.
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The NPS proposes to eliminate existing § 9.47(a), “Cultural Resource Protection,” because the section merely summarizes the requirements of the Antiquities Act (54 U.S.C. 320301
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Proposed § 9.86 consolidates various sections of the existing regulation, clarifies that an operator must submit a Spill Control and Emergency Preparedness Plan (SCEPP) plan to the NPS, and identifies the information necessary to complete a SCEPP.
Proposed § 9.87 clarifies the additional information a geophysical operator would need to submit to the NPS.
Proposed §§ 9.88 through 9.90 clarify the additional information an operator would need if it is proposing to drill, stimulate, or produce a well.
Proposed § 9.89 is a new set of information requirements for well stimulation, including hydraulic fracturing operations. Information requirements include identifying the geologic barriers between the target zone and the deepest usable water zone, verifying mechanical integrity of the wellbore, and describing water use and disposal management of flowback fluids. NPS notes that the Bureau of Land Management (BLM) has recently promulgated regulations addressing hydraulic fracturing on federal and Indian lands at 43 CFR part 3160 (80 FR 16128, March 26, 2015). We have carefully considered the BLM regulations to ensure that the NPS regulations are as consistent as possible. Here, the NPS proposed rule uses most of the language from BLM's hydraulic fracturing information requirements at 43 CFR 3162.3-3(d)(1) through (7). Where a BLM information requirement is not specifically included in proposed § 9.89, it is because NPS already has equivalent information requirements that are applicable to all operations. Additionally, NPS has specific guidance on the means to ensure well integrity standards are met in its NPS's 2006 9B Operator's Handbook.
Existing § 9.37(a)(1) requires that, before approving a plan of operations, the Regional Director determine that the operator uses technologically feasible, least damaging methods that provide for protection of the park's resources and public health and safety.
The existing rule has two different approval standards, depending on whether the operation is proposed on non-federally or federally owned surface. For operations proposed on non-federally owned surface a Regional Director cannot approve an operation that would constitute a nuisance to federal lands or waters in the vicinity of the operations, or would significantly injure federally owned or controlled lands or waters. For more information on what would constitute “significantly injury” please see
Existing § 9.37(b) and (c) require the NPS to make a decision on the plan of operations within 60 days after the date that the NPS determines that the materials submitted under the plan are adequate. Within 60 days, the Regional Director must make one of six final decisions in writing. The final decisions are: Approval or rejection; conditional approval; modification to the plan or additional information is required; more time is necessary to complete review; environmental statement is required before approval; or more time is necessary for public participation and analysis of public comments.
Existing § 9.37(c) provides that failure of the NPS to make a final decision within 60 days constitutes a rejection of the plan. The operator has a right to appeal this decision under existing § 9.49.
The proposed rule establishes a two-stage permit application review process, eliminates the dual approval standards, provides more realistic timeframes to provide notice back to an operator, and consolidates the final decisions the NPS can make on an operator's permit application.
Proposed § 9.101 describes the NPS's initial review of an operator's permit application. During initial review the NPS would determine whether the applicant has supplied all information necessary for the NPS to evaluate the operation's potential effects affecting federally owned or administered lands, waters, or resources of NPS units, visitor uses or experiences, or visitor or employee health and safety. The NPS would respond to applicants within 30 days and tell them whether the information contained in their permit applications is complete. If the NPS needs more time to complete the review, the NPS will provide the applicant with an estimate of the amount of additional time reasonably needed and an explanation for the delay. Once a permit application is complete the NPS conducts formal review.
During formal review under proposed § 9.102 the NPS evaluates whether the proposed operation meets the NPS approval standards (§ 9.103) and conducts its compliance responsibilities under applicable federal statutes (
In light of NPS experience over the past 35 years in implementing the 9B regulations, the current 60-day period for reaching a final decision on a permit application is not realistic. These decisions require time to adequately analyze an operator's proposal, work with the operator on a design that incorporates acceptable avoidance and mitigation measures, and comply with the associated federal statutory responsibilities such as NEPA, ESA, and NHPA. The regulations should provide operators with realistic expectations of the timeframe to process operations permits in order to adequately plan for the start of operations. Similarly, the NPS must take into account realistic timeframes for its coordination with other federal and state agencies. Thus, proposed § 9.104 allows the NPS 180 days to complete its formal review. The proposed regulation would allow for a longer period of time, if the parties agree to it, or if the NPS determines that it needs more time to comply with applicable laws, executive orders, and regulations. In some cases, the NPS may be able to complete formal review in less than 180 days. The NPS is seeking comment on whether 180 days is reasonable and any incremental impacts on operators.
The proposed rule would remove existing section § 9.37(c), which results in a rejection of the proposal if the NPS does not respond within 60 days, and replaces it with § 9.104, which authorizes the Superintendent to notify the operator in writing that additional time is necessary to make a final decision.
Proposed § 9.103 would replace the existing dual approval standards with a single three-part approval standard that
Proposed § 9.103(a) lists three basic determinations that the Regional Director must make before approving an application for an operations permit.
Proposed § 9.103(b) adds two other prerequisites to approval: (1) Submittal of adequate financial assurance and (2) proof of adequate liability insurance.
Proposed § 9.104 would establish two final actions: (1) Approved, with or without conditions, or (2) denial, and the justification for the denial. The Regional Director would notify the operator in writing of the final action. If approved, this written notification constitutes the NPS's authorization to conduct activities.
The NPS has eliminated the proviso in the approval standard in current section § 9.37(a)(3), which allows for approval using only the “technologically feasible, least damaging methods” standard of section § 9.37(a)(1) if application of the more stringent § 9.37(a)(3) standard would constitute a taking of a property interest. Over the past 35 years of implementing the 9B Regulations, the NPS has never used this exception. In every instance, the NPS has authorized operators' access and protected park resources and values by applying reasonable avoidance and mitigation measures to the exercise of operators' mineral rights. As noted in the Purpose and Scope section above, the proposed rule at § 9.30(c) maintains the existing regulatory provision stating that the 9B regulations are not intended to result in a taking of mineral rights. The approval standard in the proposed rule simply incorporates that provision by reference, rather than expressly spelling it out as part of the standard. This change is not intended or expected to authorize any taking of property rights, and is intended solely to simplify the approval standards and avoid redundancy and confusion. The NPS will continue to work with operators to help plan and design their operations in a way that meets NPS operating standards and other applicable provisions of these regulations.
The Big Cypress National Preserve Addition Act (BCNPAA), (16 U.S.C. 698m-4), requires that the NPS include language describing the procedures for reviewing an Operations Permit application within the Big Cypress National Preserve and Addition Area.
Accordingly, proposed § 9.105 describes the procedure for initial review of a proposed operation in Big Cypress National Preserve. This procedure would differ slightly from the service-wide procedure described in §§ 9.101 and 9.102. The NPS's service-wide proposed rule incorporates the 30-day initial review period from the BCNPAA. However, the BCNPAA at 16 U.S.C. 698m-4(b)(2)(C) places a regulatory limit on the amount of collaboration that can occur between the NPS and the operator. Under this provision, there is no regulatory mechanism for the NPS to request further information from an operator after the NPS has made its initial request for additional information. After making such a request, the NPS's only options are to approve or deny the application. This procedure could conceivably result in denial of applications that would have been approved if the NPS had the regulatory authority to again request the additional information necessary to fully evaluate a proposed operation. In practice, the NPS will continue to collaborate with prospective operators in Big Cypress National Preserve early in their planning process and as much as possible during initial review, in order to reduce such theoretical problems. The NPS is not proposing to use the Big Cypress procedure in its service-wide regulations, because it does not want to constrain its ability to have more robust collaboration with operators.
The BCNPAA also differs slightly from the proposed service-wide rule in that under the BCNPAA the 90-day time period for final action begins upon submission of the permit application to the NPS. For the service-wide rule, the NPS has chosen not to adopt submission of the permit application as the triggering event for the 180-day time period. Rather, the NPS proposed service-wide rule provides that the 180-day time period begins upon the NPS determination that the operator's permit application contains complete information. This is consistent with the existing 9B Regulations at 36 CFR 9.36(c). Before the NPS can begin to conduct an analysis of an operator's proposal, it must have all necessary information from an operator. For proposals within Big Cypress National Preserve, the NPS will strive to meet the applicable timeframe for final action while otherwise complying with applicable laws including NEPA and the ESA.
The NPS has decided to include applicable language from the BCNPAA in this regulation instead of in a new park-specific regulation in Part 7, because the remaining sections of the 9B regulation still apply to oil and gas operations in Big Cypress National Preserve and the NPS believes it will be easier for operators to have all applicable regulations in one place.
Proposed § 9.110 clarifies the purpose and function of operating standards. The NPS would maintain the current practice of setting non-prescriptive operating standards to allow operators the flexibility to design their proposed operation using the latest technological innovations that will best protect park system resources, values, and visitor health and safety.
Proposed § 9.110(c) is a general standard that requires all operators to use technologically feasible, least damaging methods to protect NPS resources and values while assuring human health and safety.
Proposed § 9.110(a) maintains the practice of incorporating applicable operating standards into an approved operations permit so that the operating standards become enforceable terms and conditions of an approved permit.
The existing regulation has a specific operating standards provision at § 9.41. Additional operating standards are scattered throughout other sections of the existing regulations (See, §§ 9.43 through 9.46).
The proposed rule would reorganize operating standards into one section and separate operating standards into the following categories: §§ 9.111 through 9.116, are operating standards that apply to all operations; § 9.117, additional operating standards that
Some of the operating standards in the existing 9B regulation are minimally described. The NPS has clarified some operating standards in its 2006 9B Operator's Handbook. The NPS proposes to include all operating standards in the proposed rule. The NPS would incorporate some operating standards from the existing regulations into the proposed rule largely without substantive change; those standards are not further discussed here. The standards summarized below either clarify existing standards or are new standards that the NPS proposes to add to the regulations.
The NPS is proposing to include new standards at § 9.111(a) to ensure that either existing or newly created surface disturbance is kept to the minimum necessary for safe conduct of operations.
The NPS is proposing to include new standards at § 9.114 and § 9.115 that would reasonably limit the visual and sound impacts of oil and gas operations on park visitor use and experience.
The NPS is proposing to add a new standard at § 9.111(h) that would avoid or limit the introduction of exotic species.
The NPS is proposing to add specific standards at § 9.112 that would address hydrologic connectivity.
Proposed § 9.116 would specify reclamation operating standards.
Proposed § 9.117 covers operating standards for surveying methods; source points; use of equipment and methods; and shot holes.
Proposed § 9.118(a)(1) requires all operators to use containerized mud systems during drilling operations.
Proposed § 9.118(a)(2) prohibits the establishment of new earthen pits for any use. Use of existing earthen pits may continue if the pits are in compliance with applicable law and subject to the Superintendent's periodic inspection.
Proposed § 9.118(b) is a new section that establishes standards for well stimulation, including standards that address hydraulic fracturing operations, such as ensuring the mechanical integrity of the wellbore, water use and disposal, and management of flowback fluids. We have carefully considered the recently promulgated BLM oil and gas regulations to ensure that the NPS regulations are as consistent as possible. The two agencies take different approaches to operating standards, though, because of their differing statutory bases for regulating the exercise of oil and gas rights. BLM's regulatory authority is derived primarily from the Mineral Leasing Act and the Federal Land Policy and Management Act and controls the use of federal property. The NPS 9B regulations address private property rights within park units and are based largely on the directive of the NPS Organic Act to “conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” As a result, BLM can and has appropriately set more prescriptive standards in its regulation, while NPS has generally set required non-prescriptive operating standards which allow operators flexibility to design operations while still protecting park system resources, values, and visitor health and safety. For example, BLM's regulation at 43 CFR 3162.5-2 (Control of wells) sets a performance standard with regard to protection of usable water, and BLM also prescribes regulatory measures necessary to achieve and verify the performance standard (43 CFR 3162.3-3(e)). NPS's approach is to review an operator's submissions to determine if they meet the overall operating standard of using the most “technologically feasible, least damaging methods” that protect park resources and values, and all other applicable operation standards. If not, the NPS would to add terms and conditions in the permits to ensure that they do so. Guidance on the specific means to meet NPS operating standards is found in NPS's 2006 9B Operator's Handbook, which is distributed to every operator and available electronically.
The NPS proposes a new “General Terms and Conditions” section to summarize those terms and conditions that apply to all operations. This section consolidates existing: §§ 9.35; 9.36(a)(15); 9.37(f); 9.41(g); 9.42; 9.46; 9.47(b); and, 9.51(a) and (b).
The water use section at existing § 9.35 does not address all state water law systems under which water rights are established or decided. Proposed § 9.120(b) would require that the NPS approve, in accordance with NPS policy, the use of surface or groundwater owned or administered by the United States.
Because monitoring and reporting requirements apply, in varying degrees, to all operations, the NPS is proposing to include monitoring and reporting requirements under General Terms and Conditions. Some of these monitoring and reporting requirements are taken from the existing regulation while others are new requirements. The new requirements are described below.
Proposed § 9.121(b) would allow the NPS to require that operators hire third party monitors when they are necessary to ensure compliance and protect park resources and values. The NPS currently requires the use of third party monitors to help the NPS ensure that it receives unbiased, reliable, and timely monitoring information demonstrating an operator's compliance with its plan of operations. See, 2006 9B Operator's Handbook, Chapter 3 (Geophysical Exploration). Over the past fifteen years, Big Thicket National Preserve, Padre Island National Seashore, Jean Lafitte National Historic Site, and Big Cypress National Preserve have required operators to use third party monitors for geographically extensive and logistically complex 3D seismic operations. The use of third party monitors has allowed the NPS to augment monitoring by park staff so that the operator can simultaneously engage in multiple operations at different locations, while still ensuring compliance with the operator's plan. The proposed rule would also make the NPS's requirements more consistent with the practice of other federal agencies (BLM, the U.S. Forest Service, and the U.S.
Proposed § 9.121(e) would broaden the reporting requirement to require that the operator submit any information requested by the Superintendent that is necessary to verify compliance with either a provision of the operations permit or this subpart. To ease this burden the proposed rule would allow an operator to submit reports that the operator has already submitted to a state or other federal agency to meet this reporting requirement, similar to existing § 9.42.
Proposed § 9.122 would require reporting related to the hydraulic fracturing process, including the disclosure of chemicals used in the hydraulic fracturing process and the volume of recovered fluids. In § 9.122, NPS has used BLM's post-hydraulic fracturing reporting requirements, but did not include two provisions (requirement for affidavit of compliance and general supporting documentation), as these requirements are addressed in other sections of this proposed rule.
Existing § 9.50 authorizes the NPS to charge a fee for commercial vehicles using NPS administered roads.
Proposed 9.130(b) would clarify that adequate and feasible access to oil and gas rights located within the boundaries of NPS units in Alaska is governed by the regulations at 43 CFR part 36, which implements § 1110(b).
Proposed § 9.131(a)(1) would supplement that authority to allow a fee based on fair market value for access (
The NPS is seeking public comment on whether the NPS should include a provision that would allow the NPS to authorize an operator to undertake compensatory mitigation in lieu of payment. The value of the compensatory mitigation would be proportional to the reasonable estimated cost of the access fee. This would allow the operator and the NPS to agree on an option to, for example, reclaim an area of previously disturbed land elsewhere within the park to offset the operator's new access.
The NPS proposes to rename the “Performance Bond” section as “Financial Assurance” to reflect the variety of instruments that an operator can provide to the NPS to meet its obligation under this section.
Existing § 9.48(a) requires an operator to file a performance bond, or other acceptable method of financial assurance, for all types of non-federal oil and gas operations and all phases of the operations. The performance bond requirement ensures that in the event an operator becomes insolvent or defaults on its obligations under an approved plan of operations, adequate funds will be available for reclamation.
Existing § 9.48(d)(3) limits the performance bond amount to $200,000 per operator, per NPS unit. Therefore, if one operator has multiple wells in an NPS unit, the NPS can only require up to $200,000 financial assurance from that operator. The existing $200,000 limit was established in 1979 and in most cases no longer represents the current potential costs of reclamation. In the event of a default by the operator, reclamation costs exceeding the limit could require the NPS to bring a civil action in federal court to recover the additional costs.
Proposed § 9.141 would make the financial assurance amount equal to the estimated cost of reclamation. This revision would substantially reduce the risk of the American taxpayers being left to assume the operator's reclamation-responsibility costs if an operator defaults on its obligations.
Proposed § 9.142 outlines the process for adjusting the amount of financial assurance due to changed conditions. Proposed § 9.143 describes the conditions under which the NPS would release the financial assurance. Proposed § 9.144 describes those circumstances that would result in forfeiture.
Proposed § 9.144(b)(3) is a new provision allowing the NPS to suspend review of an operator's pending permit applications, if that operator has forfeited its financial assurance. Suspension would last until the Superintendent determines that all violations have been resolved.
Proposed § 9.150, would rename the “Supplementation or Revision of Plan of Operations” section as “Modification to an Operation” to characterize any change to an approved operations permit. This section would clarify that either the NPS or the operator can request modification of the operator's permit, and describes the modification procedures. Approval of any modification to an approved permit must meet the same criteria that apply to Temporary Access Permits (proposed §§ 9.60 through 9.63) or Operations Permit: Application Review Process (proposed §§ 9.100 through 9.105).
Proposed § 9.150(c) would prohibit an operator from implementing a modification until the NPS has provided written approval of the modification to the operator.
This proposed section renames the existing § 9.34 “Transfer of Interest” section as “Change of Operator.”
Existing § 9.34(a) provides that a previous owner remains liable on its financial assurance until it informs the NPS that the rights have been transferred to another party. A new owner cannot operate until it posts financial assurance and ratifies the existing plan of operations. If the previous owner provides notice to the Superintendent, the previous owner could request release of its financial assurance before the new owner posts its own financial assurance with the NPS. Therefore, if the new owner abandons operations before posting financial assurance with the NPS, the burden of reclaiming the site could fall on the taxpayers.
Proposed § 9.160 holds the previous operator responsible to the NPS until
Proposed § 9.161 requires that the new operator adopts and agrees to the terms and conditions of any previous operator's operations permit. Proposed § 9.161(b) addresses transfer of an operation where an exemption was previously granted under proposed § 9.72.
This section replaces, in part, existing § 9.39(a)(2)(iv) and creates a new section “Well Plugging.”
Existing § 9.39(a)(2)(iv) requires operators to plug and cap all non-productive wells and to fill dump holes, ditches, reserve pits, and other excavations. Proposed § 9.116(d)(1) (Operating Standards) would retain the requirement that an operator conduct reclamation by plugging all wells. However, the existing regulations do not give the NPS the authority to require an operator to plug wells that have been in extended shut-in status. As a result inactive wells have remained unplugged for years and, in some instances, decades. Unplugged wells could adversely impact park resources and could also present risks to park visitors.
Proposed § 9.170(a) would establish that operators are required to plug a well within a specified time period after cessation of drilling or production operations or upon the expiration of NPS approved shut-in status. Under proposed § 9.171, an operator can seek an extension to the plugging requirement if the operator describes why drilling or production operations have ceased and its reasonable future use of the well, demonstrates mechanical integrity, and follows maintenance requirements.
The proposed procedures are consistent with the way many states approach the issue of inactive wells, and recognize that certain economical or logistical reasons exist to justify maintenance of wells in shut-in status for extended periods of time. Rather than a “produce or plug” policy, the proposed regulation provides assurance that shut-in wells are maintained in an environmentally sound and safe manner.
Existing § 9.51(c) provides two different compliance procedures for suspending an operation, depending on whether or not the violation poses an “immediate threat of significant injury to federally owned lands or waters.” Proposed § 9.181 would allow the Superintendent discretion to suspend an operation regardless of whether an operator's violation poses an “immediate threat of significant injury.” Whether the threat is immediate or not, any violation that results in a threat of damage to park resources and values should be addressed by the Superintendent.
Proposed § 9.180 lists the prohibited acts to provide operators with notice of the acts that would constitute a violation of the 9B regulations. The proposed rule expands the prohibited acts to include not only violation of the terms and conditions of an Operations Permit, but also violations of other provisions of the 9B regulations.
Existing § 9.51 authorizes the NPS to suspend an operation for non-compliance and if the violation or damage is not corrected, revoke an operator's plan of operations. The process to suspend an operation requires coordination between park staff and other NPS offices during which time damage to park system resources and values may continue. Additionally, suspension and revocation are not necessarily the most appropriate means to correct minor acts of non-compliance (minor leaks and spills, improper road maintenance, or not maintaining proper site security). Therefore, we are proposing to incorporate our existing penalties at 36 CFR 1.3 that would allow NPS law enforcement rangers and special agents to issue citations, which would result only in fines for minor acts of non-compliance, while treating the more serious acts as ones that may be subject to a fine or imprisonment, or both.
Under proposed § 9.182 NPS would not review any new operating permit applications or continue to review any pending permit applications anywhere in the National Park System until an operator comes into compliance with a violation of this subpart or a violation of a term or condition of an operations permit.
Most of the procedures outlined in existing § 9.49 remain the same. The operator continues to have the right to appeal a decision made by either the Superintendent or the Regional Director. The operator now must exhaust these remedies before the NPS decision is considered a final agency action that is subject to review under the Administrative Procedure Act (APA).
The proposed rule now describes the first step of the process as a request for “reconsideration,” rather than an appeal, since it is directed to the same official who issued the original decision. The proposed rule also includes other clarifications of the existing language, makes editorial corrections, and reorganizes the sequence of some of the paragraphs.
Consistent with the APA, proposed § 9.193(a) would provide that during the reconsideration and appeals process the NPS's decision will be suspended and the decision will not become effective until the completion of the appeals process. Proposed § 9.193(b) addresses suspension of operations due to emergencies that pose an immediate threat of injury to injury to federally owned or controlled lands or waters.
The proposed rule renames the “Public Inspection of Documents” section to “Public Participation.”
Existing § 9.52(a) requires a Superintendent to publish a notice in a local newspaper of a request to conduct non-federal oil and gas operations whether or not a complete plan of operations is ever submitted by an
The proposed rule retains the ability for an operator to protect proprietary or confidential information from disclosure to the public. Operators need to clearly mark those documents that they wish to protect from public disclosure as “proprietary or confidential information” such that these documents are readily identifiable by the NPS decision maker. The NPS has also included proposed provisions that allow an operator engaged in hydraulic fracturing operations to withhold chemical formulations that are deemed to be a trade secret.
See Paperwork Reduction Act discussion below.
As a result of the new organization and section numbering in the proposed subpart B, it is necessary to renumber the sections in the existing part 9, subpart D. In addition, because we see no reason to continue to reserve subpart C, the proposed rule redesignates the existing subpart D as subpart C. The proposed rule makes no substantive changes to these provisions.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this proposed rule is significant because it may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements. As noted above, we have carefully considered the BLM regulations to ensure consistency to the greatest extent possible between provisions of these proposed NPS regulations that relate to hydraulic fracturing, and the recent BLM regulations. The NPS is aware of the current litigation concerning BLM's final hydraulic fracturing rule,
This rule would not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601
This proposed rule is not a major rule under 5 U.S.C. 804(2) of the SBREFA. This proposed rule:
(a) Does not have an annual effect on the economy of $100 million or more;
(b) Would not cause a major increase in costs or prices for consumers, individual industries, Federal, state, or local government agencies, or geographic regions; and
(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
These conclusions are based upon the cost-benefit and regulatory flexibility analysis found in the report entitled
This proposed rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The proposed rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. It addresses use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the UMRA (2 U.S.C. 1531
The proposed rule does not take private property or authorize the taking of private property. Moreover, NPS believes that implementation of the proposed rule is not likely to result in a taking of private property. Accordingly, NPS believes that the proposed rule does not require the preparation of a takings implications assessment under Executive Order 12630.
The proposed rule would update regulations that have been in effect since 1979. It would update various provisions of the existing regulations in a manner that is consistent with current industry standards and technological capabilities, prevailing industry and investor expectations, and the most recent developments in regulatory and takings law. It would authorize NPS to recover its legitimate permit-processing and monitoring costs and to charge operators for privileged access across federal lands (
The proposed rule would extend the applicability of the 9B regulations to most currently exempt operations located within park boundaries. During the 36 years that the existing regulations have been in place, however, NPS has never disapproved a submitted plan of operations and no mineral owner or operator has ever filed a claim asserting that implementation of the regulations has resulted in a taking of private property. Moreover, as described above, the proposed rule would update the
Finally, the regulatory text will continue to state (as do the existing regulations) that it is not intended to result in a taking. The existing regulations also contain a second provision that expressly applies the lower of the two standards of review in the event of a possible taking. Because the proposed rule would contain only one standard of review (in an effort to simplify the rule), such a provision no longer appears appropriate. NPS has never actually needed to invoke that second provision, nor has it ever failed to provide final approval for a plan of operations that has been sought. Under the proposed rule, NPS would retain discretion to make individual permit decisions that will avoid a taking if an unexpected problem should arise.
For the foregoing reasons, NPS believes that a takings implications assessment is not required.
Under the criteria in section 1 of Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. It addresses use of national park lands, and imposes no requirements on other agencies or governments. A Federalism summary impact statement is not required.
This proposed rule complies with the requirements of Executive Order 12988. Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Indian tribes and that consultation under the Department's tribal consultation policy is not required. Nonetheless, NPS has consulted with all federal tribes traditionally associated with Category 1 parks, which have current oil and gas operations, and Category 2 parks, which do not have active operations, but have potential for future operations.
This proposed rule contains information collection requirements that we are submitting to the Office of Management and Budget (OMB) for review and approval under the PRA (44 U.S.C. 3501
OMB has reviewed and approved the current information collection requirements associated with non-Federal oil and gas rights in national parks and assigned OMB Control Number 1024-0064, which expires March 31, 2016. We are asking OMB to assign a new OMB Control Number for the information collection requirements in this proposed rule. If OMB approves this request, we plan to keep the new number for subpart B requirements after we publish the final rule. We will delete the burden associated with subpart B from OMB Control No. 1024-0064.
We are proposing to collect the following information under 36 CFR Part 9, Subpart B associated with non-Federal oil and gas operations within units of the National Park System.
Previously exempt operators must submit the following information to the NPS:
• Brief description of the current operations and any anticipated changes to the current operations.
• Documentation showing the right to operate within an NPS unit.
• State well identification permit number or American Petroleum Institute (API) well number.
• Maps delineating the area of operations and the area of surface disturbance and equipment layout within the area of operations.
• Spill Control Environmental Preparedness Plan.
• Documentation of the current operating methods, surface equipment, downhole well construction and completion, materials produced or used, and monitoring methods.
• Description of how the operation will meet NPS operating standards.
• Description of procedures to be used and cost estimates for well plugging and surface reclamation.
• Results of any necessary reconnaissance surveys.
To gather necessary background information for an Operations Permit, the operator will need to obtain a Temporary Access permit by submitting the following information to the NPS:
• Brief description of the intended future operation.
• Demonstration of the right to operate.
• Contact information for the person responsible for the overall management of the proposed operations.
• Contact information and qualifications of all specialists responsible for conducting the reconnaissance surveys.
• Map delineating the proposed reconnaissance survey area.
• Description of proposed means of access and routes to the survey area; and a description of the survey methods.
To extend the term of a Temporary Access Permit, operators must submit a written request that explains why the extension is necessary.
This proposed rule allows operators to apply for an exemption from the operations permit requirement of the regulations if they directionally drill from a surface location outside an NPS unit to reach a bottom hole located within NPS boundaries. To apply for an exemption, NPS requires the following information.
• Names and addresses of the operator; the mineral owner; and any
• Documentation demonstrating the legal right to operate in an NPS unit.
• Contact information for the operator's representative responsible for field supervision of the proposed operations and for emergency response for the proposed operations.
• Maps and plats to scale showing the boundaries of each of the mineral tracts that are relevant to the proposed operations within the NPS unit boundary.
• Maps and plats to scale showing all proposed surface uses (well site, access route, flowlines, production facilities) that occur outside the NPS unit.
• Description, including depths, thicknesses, and properties of geologic horizons between the target zone and the base of the deepest aquifer.
• Drilling plan, including directional-drilling program, horizontal distance along the wellbore's path from well's surface location to the park boundary, depth at which wellbore crosses NPS unit boundary, and timeline for operations.
• Casing, cementing, and mud programs.
• Stimulation programs.
• Well plugging and abandonment program.
• If hydraulic fracturing is proposed, information required in § 9.89.
Within 30 days, operators must notify NPS if the method of operation or environmental conditions of operation change.
All applications for an Operations Permit, must contain the following information:
• Documentation demonstrating the right to operate within an NPS unit.
• Contact information for the operator; the mineral owner; any agents, assignees, designees, contractors, or other representatives of the owner; and the operator's representative responsible for overall management, field supervision, and emergency response for the proposed operation.
• Existing condition and proposed area of operations, including all information required by § 9.84.
• Reclamation Plan, including (1) a description of the specific equipment and methods used to meet the operating standards for reclamation (§ 9.116); and (2) a breakdown of the estimated costs that a third party would charge to complete reclamation as proposed in the reclamation plan.
• Use of water, including (1) the source, quantity, access route, and transportation/conveyance method for all water to be used in access road and pad construction, well drilling, stimulation, and production; and (2) estimations of any anticipated waste water volumes generated and how they will be managed (
• Environmental condition and mitigation actions, including all information required in § 9.85.
• Spill control and emergency preparedness plan, including all information required by § 9.86.
• Number of crews and number of workers in each crew.
• Names and depths of geologic zones targeted for imaging.
• Description of the acquisition methods, including the procedures, specific equipment you will use, and energy sources (
• Methods of access along each survey line for personnel, materials, and equipment.
• List of all explosives, blasting equipment, chemicals, and fuels you will use in the proposed operations, including a description of proposed disposal methods, transportation methods, safety measures, and storage facilities.
• Map showing the positions of each survey line including all source and receiver locations as determined by a locational survey, and including shotpoint offset distances from wells, buildings, other infrastructure, and areas the NPS has indicated to you as environmentally sensitive areas.
• Well-pad construction, including dimensions and cross sections of: Cut and fill areas and excavations for ditches, sumps, and spill control equipment or structures, including lined areas.
• Drill-rig and equipment layout, including rig components, fuel tanks, testing equipment, support facilities, storage areas, and all other well-site equipment and facilities.
• Drilling program, including hole size for each section and the directional program, if applicable.
• Proposed drilling depth and the estimated depths and names of usable water, brine, hydrocarbon, geothermal, or other mineral-bearing zones.
• Type and characteristics of the proposed mud systems.
• Casing program, including the size, grade, weight, and setting depth of each string.
• Cementing program, including downhole location of any stage equipment, cement types, volumes, and additives to be used, and a description of pressure tests and cement verification techniques used that will be run to evaluate cement placement and integrity.
• Minimum specifications for pressure control equipment function and pressure testing frequency and the blowout preventer stack arrangement.
• Proposed logging, coring, and testing programs. Proposed completion program, including completion type (open-hole, perforated, slotted liner, etc.).
• Procedures, including considerations for well control.
• Description of the equipment, materials, and procedures proposed for well plugging, including plug depths, plug types, and minimum mud weight.
• Geologic names, a geologic description, and the estimated depths (measured and true vertical) to the top and bottom of the formation into which hydraulic fracturing fluids are to be injected. The estimated minimum vertical distance between the top of the fracture zone and the nearest usable water zone, and the measured depth of the proposed perforated or open-hole interval.
• Estimated depths (measured and true vertical) to the top and bottom of the confining zone(s). Include a map showing the location, orientation, and extent of any known or suspected faults or fractures within one-half mile (horizontal distance) of the wellbore trajectory that may transect the confining zone(s).
• Map showing all existing wellbore trajectories, regardless of type, within one-half mile (horizontal distance) of any portion of the wellbore into which hydraulic fracturing fluids are to be injected. The true vertical depth of each wellbore identified on the map must be indicated.
• Steps to be taken before treatment to verify mechanical integrity of all downhole tubulars and tools and cement quality, including pressure tests and cement bond logs (or other logs acceptable to the Superintendent) demonstrating that the occurrences of usable water zones have been isolated to protect them from contamination.
• Detailed description of the proposed well-stimulation design, including:
(1) Proposed stimulation fluid, including, but not limited to, the base fluid and each additive by trade name, and purpose of additive.
(2) Proposed proppant system.
(3) Estimated total volume of fluid to be used.
(4) Anticipated surface treating pressure range.
(5) Maximum anticipated surface pressure that will be applied during the hydraulic fracturing process.
(6) Trajectory of the wellbore into which hydraulic fracturing fluids are to be injected and the estimated direction and length of the fractures that will be propagated and a notation indicating the true vertical depth of the top and bottom of the fractures; and
(7) Any microseismic monitoring planned or proposed in conjunction with well stimulation.
• Source and location of water supply, such as reused or recycled water, rivers, creeks, springs, lakes, ponds, and water supply wells, and the source and location of water supply, such as reused or recycled water, rivers, creeks, springs, lakes, ponds, and water supply wells.
• Storage, mixing, pumping, and control equipment needed to perform the stimulation.
• Information on recovered fluids, including:
(1) Estimated volume of stimulation fluids to be recovered during flow back.
(2) Proposed methods of handling the recovered fluids including any onsite treatment for re-use of fluids in other stimulation activities.
(3) Proposed disposal method of the recovered fluids, including, but not limited to, injection, hauling by truck, or transporting by pipeline.
• Dimensions and the to-scale layout of the wellpad, clearly identifying well locations, noting partial reclamation areas; gathering, separation, metering, and storage equipment; electrical lines; fences; spill control equipment or structures including lined areas, artificial lift equipment, tank batteries, treating and separating vessels, secondary or enhanced recovery facilities, water disposal facilities, gas compression and/or injection facilities; metering points; sales point (if on lease); tanker pick-up points; gas compressor, including size and type (if applicable); and any other well site equipment.
• Size, grade, weight, and setting depth of all casing and tubing strings; cementing history; type and size of packers and subsurface flow control devices; top and bottom depths of each completed interval; and method of completion.
• Well history, including completions, stimulations, servicing, and workovers.
• Minimum specifications for pressure-control equipment, function, and pressure-testing frequency.
• Method and means used to transport produced oil and gas, including vehicular transport; flowline and gathering line construction; operation; pipe size; operating pressure; cathodic protection methods; surface equipment use; surface equipment location; maintenance procedures; maintenance schedules; pressure detection methods; and shutdown procedures.
• Road and wellpad maintenance plan, including equipment and materials to maintain the road surface and control erosion.
• Vegetation management plan on well sites, roads, pipeline corridors, and other disturbed surface areas, including control of exotic species.
• Storm water management plan on the well site.
• Produced water storage and disposal plan.
• Procedures proposed for well plugging, the depths and the types of plugs, and minimum mud weight.
• Not begin injection activities before you demonstrate the mechanical integrity of all surface and downhole tubulars and equipment to differential pressures equal to at least those calculated at the maximum anticipated treating pressure. Continuously monitor and record the treating pressures and all annular pressures before, during, and after the treatment to ensure that treatment materials are directed to the intended zone.
• If mechanical integrity is lost during the treatment, immediately cease the operation and notify the Superintendent as soon as feasible, but no later than 24 hours after the incident.
• Within 15 days after the occurrence, submit to the Superintendent a report containing all details pertaining to the incident, including corrective actions taken.
• Monitor producing conditions to document maintenance of mechanical integrity of both surface and subsurface equipment.
• Identify wells and related facilities by a sign, which must remain in place until the well is plugged and abandoned and the related facilities are closed. The sign must be of durable construction, and the lettering must be legible and large enough to be read under normal conditions at a distance of at least 50 feet. Each sign must show the name of the well, name of the operator, and the emergency contact phone number.
• Provide the NPS an affidavit, signed by an official who is authorized to legally bind the company, stating that proposed operations are in compliance with all applicable federal, state, and local laws and regulations and that all information submitted to the NPS is true and correct. (§ 9.120(c)).
• Third party monitor will report to NPS on compliance with permit. (§ 9.121(b)(2)).
• Notify the Superintendent of any accidents involving serious personal injury or death and of any fires or spills on the site within 24 hours after the accident occurs. (§ 9.121(c)).
• Submit a full written report on the accident to the Superintendent within 90 days after the accident occurs. (§ 9.121(c)).
• Notify the Superintendent within 24 hours after the discovery of any cultural or scientific resource you encounter that might be altered or destroyed by your operation. (§ 9.121(d)).
• Submit reports or other information necessary to verify compliance with your permit or with any provision of this subpart. (§ 9.121(d)).
• If your operations include hydraulic fracturing, you must provide the Superintendent with a report including all of the information below within 30 days after the completion of the last stage of hydraulic fracturing operations for each well (§ 9.122):
(a) The true vertical depth of the well, total water volume used, and a description of the base fluid and each additive in the hydraulic fracturing fluid, including the trade name, supplier, purpose, ingredients, Chemical Abstract Service Number (CAS), maximum ingredient
(b) The actual source(s) and location(s) of the water used in the hydraulic fracturing fluid;
(c) The maximum surface pressure and rate at the end of each stage of the hydraulic fracturing operation and the actual flush volume.
(d) The actual, estimated, or calculated fracture length, height, and direction.
(e) The actual measured depth of perforations or the open-hole interval.
(f) Actual volume of stimulation fluids recovered during flow back, including a description of how the volumes were measured or calculated.
(g) The following information concerning the handling of fluids recovered, covering the period between the commencement of hydraulic fracturing and the implementation of the approved permit for the disposal of produced water under NPS requirements:
(1) Methods of handling the recovered fluids, including, but not limited to, transfer pipes and tankers, holding pond use, re-use for other stimulation activities, or injection; and
(2) Disposal method of the recovered fluids, including, but not limited to, the percent injected, the percent stored at an off-lease disposal facility, and the percent recycled.
(h) Continuous monitoring records of annulus pressure at the bradenhead and other annular pressures that document pressures before, during, and after injection operations.
All operators are required to post adequate financial assurance with the NPS and are required to submit the following documentation to the NPS:
• Proof of financial assurance in a form acceptable to the Regional Director and payable upon demand.
• If necessary, an adjustment to the financial assurance amount because of any circumstance that increases or decreases the estimated costs.
Operators may request or we may require an operator to modify their operations. To request a modification to an approved permit, operators must provide written notice to the Superintendent describing the modification and why it is needed.
If an operator transfers its operation to a new operator, both the old and new operator must provide information to the NPS.
• Notify the Superintendent in writing within 30 calendar days after the date the new owner acquires the rights to conduct operations providing:
(a) Names and addresses of the person or entity conveying the right and the person or entity acquiring the right.
(b) Effective date of transfer.
(c) Description of the rights, assets, and liabilities being transferred and which ones, if any, are being reserved by the previous owner.
(d) Written acknowledgement from the new owner that the contents of the notification are true and correct.
• Adopt and agree in writing to conduct operations in accordance with all terms and conditions of the previous operator's operations permit;
• File financial assurance with us that is acceptable to the Regional Director and made payable to the NPS.
If the previous operator was granted an exemption for accessing oil and gas rights from a surface location outside the park boundary, you must provide to the Superintendent:
• Documentation demonstrating that you hold the right to operate within an NPS unit;
• The names and addresses of the operator; the mineral owner; any agents, assignees, designees, lessees, or other representatives of the operator; the operator's representative responsible for the overall management of the proposed operations; the operator's representative responsible for field supervision of the proposed operations; and the operator's representative responsible for emergency response for the proposed operations.
An operator may apply for either an operations permit or a modification to its approved operations permit to maintain its well in a shut-in status for up to 5 years. The application must include the following information:
• Explanation of why the well is shut-in or temporarily abandoned and your future plans for utilization.
• Demonstration of the mechanical integrity of both surface and downhole equipment such that there is no migration of fluid from any formation in which it originally occurred or from the surface to the well.
• Description of the manner in which the operator well, equipment, and area of operations will be maintained.
To appeal an NPS decision, the operator must submit a written statement describing the alleged factual or legal errors in the original decision and requesting that the Regional Director reconsider the decision.
An operator may request that information required to be reported under these regulations concerning chemical formulations that are deemed to be trade secrets be withheld from disclosure. To make this request the operator must:
• Identify the owner of the withheld information and provide the name, address and contact information for a corporate officer, managing partner, or sole proprietor of the owner of the information.
• Identify the Federal statute or regulation that would prohibit the NPS from publicly disclosing the information if it were in the NPS's possession.
• Affirm that the operator has been provided the withheld information from the owner of the information and is maintaining records of the withheld information, or that the operator has access and will maintain access to the withheld information held by the owner of the information.
• Affirm that the information is not publicly available.
• Affirm that the information is not required to be publicly disclosed under any applicable laws and policies local, State, tribal, or Federal law;
• Affirm that the owner of the information is in actual competition and identifies competitors or others that could use the withheld information to cause the owner of the information substantial competitive harm;
• Affirm that the release of the information would likely cause substantial competitive harm to the owner of the information and provides the factual basis for that affirmation; and
• Affirm that the information is not readily apparent through reverse engineering with publicly available information.
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on any aspect of this information collection, including:
(1) Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on respondents.
Send your comments and suggestions on this information collection by the date indicated in the
This rule constitutes a major Federal action with the potential to significantly affect the quality of the human environment. We have prepared the DEIS under the requirements of NEPA. The DEIS will publish shortly after this proposed rule and be available online at
This proposed rule is not a significant energy action under the definition in Executive Order 13211. A statement of Energy Effects is not required.
We are required by Executive Orders 12866 (section 1(b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you believe we have not met these requirements, send us comments by one of the methods listed in the
This proposed rule reflects the collective efforts of NPS staff in the Geologic Resources Division, parks, and field offices, with assistance from the Division of Jurisdiction, Regulations and Special Park Uses.
It is the policy of the Department of the Interior, whenever feasible, to afford the public an opportunity to participate in the rulemaking process. Accordingly, interested persons may submit written comments regarding this proposed rule by one of the methods listed in the
We are particularly interested in comments concerning:
1. Substantive differences between NPS's proposed regulations of oil and gas activity and those of other Federal agencies, including differences in the associated costs and benefits.
2. The costs and benefits of not applying this rule to inholdings, and to operators' surface operations when accessing oil and gas rights inside an NPS unit from a surface location outside the park boundary.
3. Whether relevant guidance presently, or planned to be, included in the NPS 9B Operators Handbook should instead be included in this rule.
4. Whether the performance and operating standards are clear and certain in their purpose, including §§ 9.30(a), 9.103(a), 9.110(c), and 9.118.
5. Alternative approaches to removing public financial exposure including multi-well blanket bonding, the establishment of industry provided plugging fund, or increasing the financial assurance cap to a fixed amount higher than $200,000. Please note that these alternatives were considered but dismissed from further analysis in the DEIS because they do not meet a fundamental purpose of the rulemaking, which is to ensure that bonding amounts are sufficient to meet reclamation needs and do not result in taxpayer liability.
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.
National parks, Penalties, Reporting and recordkeeping requirements
National parks, Oil and gas exploration, Reporting and recordkeeping requirements.
In consideration of the foregoing, the National Park Service proposes to amend 36 CFR parts 1 and 9 as follows:
54 U.S.C. 100101, 100751, 320102.
(a) A person convicted of violating a provision of the regulations contained in parts 1 through 7, part 9 subpart B, and parts 12 and 13 of this chapter, within a park area not covered in paragraphs (b) or (c) of this section, shall be punished by a fine as provided by law, or by imprisonment not exceeding 6 months, or both, and shall be adjudged to pay all costs of the proceedings.
(b) A person who knowingly and willfully violates any provision of the regulations contained in parts 1 through 5, 7, part 9 subpart B, and part 12 of this chapter, within any national military park, battlefield site, national monument, or miscellaneous memorial transferred to the jurisdiction of the Secretary of the Interior from that of the Secretary of War by Executive Order No. 6166, June 10, 1933, and enumerated in Executive Order No. 6228, July 28, 1933, shall be punished by a fine as provided by law, or by imprisonment for not more than 3 months, or by both.
These park areas are enumerated in a note under 5 U.S.C. 901.
(c) A person convicted of violating any provision of the regulations contained in parts 1 through 7, and part 9 subpart B of this chapter, within a park area established pursuant to the Act of August 21, 1935, 49 Stat. 666, shall be punished by a fine as provided by law and shall be adjudged to pay all costs of the proceedings. 54 U.S.C. 320105.
(d) Notwithstanding the provisions of paragraphs (a), (b) and (c) of this section, a person convicted of violating § 2.23 of this chapter shall be punished by a fine as provided by law. 16 U.S.C. 6811.
16 U.S.C. 230a(a)(4), 459d-3, 460cc-2(i), 460ee(c)(4), 698c(b)(2), 698i(b)(2), and 698m-4; 18 U.S.C. 3571 and 3581; 31 U.S.C. 9701; 54 U.S.C. 100101, 100751, and 103104.
(a) This subpart ensures that operators exercising non-federal oil and gas rights within an NPS unit use technologically feasible, least damaging methods to:
(1) Protect federally owned or administered lands, waters, or resources of NPS units;
(2) Protect NPS visitor uses or experiences, or visitor or employee health and safety; and
(3) Protect park resources and values under the statute commonly known as the NPS Organic Act;
(b) This subpart applies to all operators conducting non-federal oil or gas operations on lands or waters within an NPS unit, regardless of the ownership or jurisdictional status of those lands or waters.
(c) We do not intend for this subpart to result in a taking of a property interest. The purpose of this subpart is to reasonably regulate operations affecting federally owned or administered lands, waters, and resources of NPS units, visitor uses and experiences, and visitor and employee health and safety.
(a) This subpart applies to you if you are an operator who conducts or proposes to conduct non-federal oil or gas operations.
(b) If you were operating outside of an NPS unit and your operation has been included within an existing NPS unit as a result of a change to the boundary, or included within a newly established NPS unit, you are subject to §§ 9.50 through 9.53.
(c) If you were operating under an exemption because your operation accessed oil and gas rights inside the park boundary from a surface location outside the park boundary, and your surface location has been included within an existing NPS unit as a result of a change to the boundary, or included within a newly established NPS unit, you are subject to §§ 9.50 through 9.53.
(a) Except as provided in §§ 9.70 through 9.73, you must obtain a temporary access permit under §§ 9.60 through 9.63 or an operations permit under §§ 9.80 through 9.90 before starting operations.
(b) You must demonstrate that you have the right to operate in order to conduct activities within an NPS unit.
(a) If you already have an NPS-approved plan of operations, you may continue to operate according to the terms and conditions of that approval, subject to the provisions of this subpart. For purposes of this subpart, we will consider your approved plan of operations to be either a temporary access permit or operations permit.
(b) This section applies to you if we have granted you an exemption to the plan of operations requirement because your operation accesses oil and gas rights inside a park boundary from a surface location outside the park's boundary. You may continue to operate under the exemption provided that your operations comply with the general terms and conditions of §§ 9.120 through 9.122. You are also subject to the prohibitions and penalties in §§ 9.180 through 9.182.
In addition to the definitions in 36 CFR 1.4, the following definitions apply to this subpart:
(1) Operations include, but are not limited to: Access by any means to or from an area of operations; construction; geological and geophysical exploration; drilling, well servicing, workover, or recompletion; production; gathering (including installation and maintenance of flowlines and gathering lines); storage, transport, or processing of petroleum products; earth moving; excavation; hauling; disposal; surveillance, inspection, monitoring, or maintenance of wells, facilities, and equipment; reclamation; road and pad building or improvement; shot hole and well plugging and abandonment, and reclamation; and all other activities incident to any of the foregoing.
(2) Operations do not include reconnaissance surveys as defined in this subpart or oil and gas pipelines that are located within the park under authority of a deeded or other right-of-way.
(1) A reconnaissance survey includes identification of the area of operations and collection of natural and cultural resource information within and adjacent to the proposed area of operations.
(2) A reconnaissance survey does not include surface disturbance activities except for minimal disturbance necessary to perform cultural resource surveys, natural resource surveys, and location surveys required under this subpart.
Yes. You must obtain an NPS operations permit in accordance with §§ 9.80 through 9.90.
Within 90 days after [effective date of the final rule] or within 90 days after the effective date of a boundary change, or establishment of a new NPS unit, as applicable, you must submit the following to the Superintendent of the NPS unit in which you propose to continue to conduct operations:
(a) A brief description of the current operations and any anticipated changes to the current operations;
(b) Documentation demonstrating that you hold the right to operate within an NPS unit;
(c) The State well-identification permit number or American Petroleum Institute (API) well number;
(d) Maps to scale that clearly delineate your proposed area of operations as of [effective date of the final rule] or the effective date of a boundary change, or establishment of a new NPS unit, as applicable, and that identify the area of surface disturbance and equipment layout within your proposed area of operations;
(e) A spill control environmental preparedness plan as required by § 9.86;
(f) Documentation of the current operating methods, surface equipment, downhole well construction and completion, materials produced or used, and monitoring methods;
(g) A description of how your proposed operation will meet each applicable operating standard in this subpart;
(h) A description of the procedures to be used and cost estimates for well plugging and surface reclamation; and
(i) The results of any reconnaissance surveys you have conducted to be used by the Superintendent to identify resource protection measures in your operations permit.
The NPS will review your application and take action under §§ 9.100 through 9.104.
Before obtaining an approved operations permit, you may continue to conduct operations subject to the following conditions:
(a) Continuation of operations is limited to those methods and the area of disturbance that existed on [insert effective date] or the effective date of a boundary change, or establishment of a new NPS unit, as applicable.
(b) Your operation is also subject to the general terms and conditions in §§ 9.120 through 9.122 and the prohibitions and penalties in §§ 9.180 through 9.182.
(c) Except in an emergency, we will not take any steps to directly regulate your operation before 90 days after [effective date of the final rule] or 90 days after the effective date of a boundary change, or establishment of a new NPS unit, as applicable.
You must apply to the Regional Director for a temporary access permit to access your proposed area of operations in order to conduct reconnaissance surveys. This permit will describe the means, routes, timing, and other terms and conditions of your access as determined by the Regional Director.
To apply for a temporary access permit, you must submit the following information to the Superintendent of the NPS unit in which you propose to conduct operations:
(a) A brief description of the intended future operation so that we can determine what information needs to be gathered;
(b) Documentation demonstrating that you hold a legal right to operate located within an NPS unit;
(c) The name, legal address, and telephone number of the owner, operator, employee, agent, or contractor responsible for overall management of the proposed operations;
(d) The name, legal address, telephone number, and qualifications of all specialists responsible for conducting the reconnaissance surveys;
(e) A map delineating the proposed reconnaissance survey area in relation to the park boundary and the proposed area of operations at a minimum scale of 1:24,000, or a scale specified by the Superintendent as acceptable;
(f) A description of proposed means of access and routes proposed for conducting the reconnaissance surveys; and
(g) A description of the survey methods you intend to use to identify the natural and cultural resources.
If the Regional Director determines that your proposed reconnaissance survey will not result in surface disturbance, except for minimal disturbance necessary to perform surveys, the Regional Director will issue you a temporary access permit within 30 days after receipt of a complete application, unless the Regional Director notifies you that additional time is necessary to evaluate or process your application.
Your temporary access permit will be in effect for a maximum of 60 days from the date of issuance. The Regional Director may extend the term of the temporary access permit for a reasonable period of time, based upon your written request that explains why an extension is necessary.
Your downhole activities inside an NPS unit are subject to these regulations. If you wish to access your oil and gas rights located inside an NPS unit from a surface location outside the unit, you must submit the information required by § 9.71. We will evaluate this information to determine whether your operations are exempt or require an operations permit. We will require an operations permit only if we determine that permit requirements are needed to protect against a significant threat of damage to:
(a) Federally owned or administered lands, waters, or resources within NPS units;
(b) NPS visitor uses or experiences; or
(c) Visitor or employee health or safety.
You must provide the information required by this section to the Superintendent of the relevant NPS unit. You must provide all of the following.
(a) The names and addresses of:
(1) The operator;
(2) The mineral owner; and
(3) Any agents, assignees, designees, lessees, contractors, employees, or other representatives of the operator responsible for the overall management of the proposed operations.
(b) Documentation demonstrating that you hold a legal right to operate in an NPS unit.
(c) Contact information for the operator's representative responsible for field supervision of the proposed operations and for emergency response for the proposed operations.
(d) Maps and plats to scale showing the boundaries of each of the mineral tracts that are relevant to your proposed operations within the NPS unit boundary.
(e) Maps and plats to scale showing all proposed surface uses (well site, access route, flowlines, production facilities) that occur outside the NPS unit.
(f) Information regarding downhole operations and conditions, including:
(1) Description, including depths, thicknesses, and properties of geologic horizons between the target zone and the base of the deepest aquifer;
(2) Drilling plan, including directional-drilling program, horizontal
(3) Casing, cementing, and mud programs;
(4) Stimulation programs; and
(5) Well plugging and abandonment program.
(g) If you propose hydraulic fracturing, then you must also provide the information required by § 9.89.
(a) Within 30 days after receiving your submission under § 9.71, the Superintendent will notify you in writing that your information is complete, you need to submit more information, or we need more time to review your submission.
(b) Within 30 days after receiving your complete submission, the Superintendent will notify you in writing that either:
(1) No further action is required by the NPS and you are exempt from the operations permit requirement; or
(2) You must obtain an operations permit.
(c) If you need an operations permit, the information provided under § 9.71 is your permit application and the NPS will review your application under §§ 9.100 through 9.104.
If the NPS notifies you under § 9.72 that you do not need an operations permit, you are still subject to the general terms and conditions in §§ 9.120 through 9.122, the prohibitions and penalties in §§ 9.180 through 9.182, and the requirements in this section.
(a) You must notify the NPS within 30 days if your method of operation or the environmental conditions of your operation change.
(b) The Regional Director may notify you in writing that you are no longer exempt from the operations permit requirement after determining that operational requirements are needed to protect against a significant threat of damage to any of the following:
(1) Federally owned or administered lands, waters, or resources of NPS units;
(2) NPS visitor uses or experiences; or
(3) Visitor or employee health or safety.
(c) Within 30 days after receiving this notification, you must file your operations permit application with the Superintendent.
Except as otherwise provided §§ 9.70 through 9.73, an operator proposing to conduct operations within the boundary of an NPS unit must submit an application for an operations permit to the Superintendent.
(a) In satisfying the requirements of §§ 9.82 through 9.90, you do not need to resubmit information that is already on file with the NPS. Instead, you may reference the previously submitted information in your permit application.
(b) You may submit documents and materials containing the information required by §§ 9.82 through 9.90 that you have submitted to other Federal and State agencies. If you do this, you must clearly identify the information required by §§ 9.82 through 9.90.
(a) Your application for an operations permit must include all of the information required by § 9.83. You must also submit the information required by §§ 9.87 through 9.90, where applicable, and any additional information that the Superintendent may require.
(b) You may provide information for only the phase of operations you propose. Each permit application is only required to describe those functions for which you want immediate approval. However, approval of an Operations Permit covering one phase of operations does not guarantee future approval of an Operations Permit covering a subsequent phase.
All applications must include the information required by this section.
(a) You must submit to-scale maps that clearly identify:
(1) The boundaries of each of your mineral tracts in relation to your proposed operations and the relevant NPS unit boundary;
(2) The natural features, including, but not limited, to streams, lakes, ponds, topographic relief, and areas the NPS has indicated to you as environmentally sensitive;
(3) The locations of existing roads, trails, railroad tracks, pads, and other disturbed areas; and
(4) The locations of existing structures that your operations could affect, including, but not limited to: Buildings, pipelines, producing oil and gas wells, freshwater wells, underground and overhead electrical lines, and other utility lines.
(b) You must submit the following information about geologic conditions under natural conditions and under the proposed operating conditions:
(1) Estimated depths and names of zones of usable water, brine, hydrocarbon, geothermal, or other mineral-bearing zones based on the best available information;
(2) Potential hazards to persons and the environment such as abnormal pressure zones, lost circulation zones, hydrogen sulfide gas, or karst formations; and
(3) Nature and extent (depth if known) of near-surface bedrock fracturing/jointing relative to proposed cemented surface casing-seat depth and any open annular interval proposed in the well design.
(c) You must submit the following information about new surface disturbances and construction:
(1) Maps showing the proposed area of operations; boundaries of new surface disturbances as determined by a location survey; and proposed access routes as determined by a location survey;
(2) Maps showing the proposed location of all support facilities, including those for transportation (
(3) The method and diagrams, including cross-sections, of any proposed pad construction, road construction, cut-and-fill areas, and surface maintenance, including erosion control;
(4) The number and types of equipment and vehicles, including an estimate of vehicular round trips associated with each phase of your operation;
(5) An estimated timetable for each phase of the proposed operations, including any operational timing constraints;
(6) The type and extent of security measures proposed at your area of operations;
(7) The power sources and their transmission systems for the proposed operations; and
(8) The types and quantities of all solid and liquid waste generation and the proposed methods of storage, handling, and disposal.
You must submit the following information about environmental conditions and mitigation actions:
(a) The natural resource and the cultural resource survey reports for your proposed area of operations;
(b) A description of the steps you propose to take to mitigate any adverse environmental impacts on park resources and values, including but not limited to, the unit's: Land features, land uses, fish and wildlife, vegetation, soils, surface and subsurface water resources, air quality, noise, lightscapes, viewsheds, cultural resources, and economic environment; and
(c) A discussion of:
(1) Any anticipated impacts that you cannot mitigate; and
(2) All alternative technologically feasible, least damaging methods of operations, their costs, and their environmental effects.
You must submit the following information about your spill control and emergency preparedness plan. You may use a spill prevention control and countermeasure (SPCC) plan prepared under 40 CFR part 112 if the plan includes all of the information required by this section. You must submit:
(a) A list of names, addresses, and telephone numbers of persons that the Superintendent can contact in the event of a spill, fire, or accident, including the order in which the persons should be contacted;
(b) Notification and reporting procedure in the event of a spill, fire, or accident;
(c) Identification of contaminating or toxic substances used within your area of operations or expected to be encountered during operations;
(d) Identification of abnormal pressure, temperature, toxic gases or substances, or other hazardous conditions at your area of operations or expected to be encountered during operations;
(e) Measures (
(f) Steps to prevent accumulations of oil or other materials deemed to be fire hazards from occurring in the vicinity of well locations and lease tanks;
(g) The equipment and methods for containment and cleanup of contaminating substances, including a description of the equipment available at your area of operations and equipment available from local contractors;
(h) A storm water drainage plan and actions intended to mitigate storm water runoff;
(i) Safety data sheets for each material you will use or encounter during operations; including expected quantities maintained at your area of operations;
(j) A description of the emergency actions you will take in the event of accidents causing human injury; and
(k) Contingency plans for conditions and emergencies other than spills, such as if your area of operations is located in areas prone to hurricanes, flooding, tornadoes, fires, or earthquakes.
If you propose to conduct geophysical exploration, you must submit the following additional information:
(a) The number of crews and numbers of workers in each crew;
(b) Names and depths of geologic zones targeted for imaging;
(c) A description of the acquisition methods, including the procedures, specific equipment you will use, and energy sources (
(d) The methods of access along each survey line for personnel, materials, and equipment;
(e) A list of all explosives, blasting equipment, chemicals, and fuels you will use in the proposed operations, including a description of proposed disposal methods, transportation methods, safety measures, and storage facilities; and
(f) A map showing the positions of each survey line including all source and receiver locations as determined by a locational survey, and including shotpoint offset distances from wells, buildings, other infrastructure, and areas the NPS has indicated to you as environmentally sensitive areas.
If you are proposing to drill a well, you must submit the following additional information:
(a) Well-pad construction, including dimensions and cross sections of: Cut
(b) Drill-rig and equipment layout, including rig components, fuel tanks, testing equipment, support facilities, storage areas, and all other well-site equipment and facilities;
(c) The drilling program, including hole size for each section and the directional program, if applicable;
(d) Proposed drilling depth and the estimated depths and names of usable water, brine, hydrocarbon, geothermal, or other mineral-bearing zones;
(e) The type and characteristics of the proposed mud systems;
(f) The casing program, including the size, grade, weight, and setting depth of each string;
(g) The cementing program, including downhole location of any stage equipment, cement types, volumes, and additives to be used, and a description of pressure tests and cement verification techniques used that will be run to evaluate cement placement and integrity;
(h) The minimum specifications for pressure control equipment function and pressure testing frequency and the blowout preventer stack arrangement;
(i) The proposed logging, coring, and testing programs;
(j) The proposed completion program, including completion type (open-hole, perforated, slotted liner, etc.) and procedures, including considerations for well control; and
(k) A description of the equipment, materials, and procedures proposed for well plugging, including plug depths, plug types, and minimum mud weight.
If you are proposing well stimulation operations, including hydraulic fracturing, you must submit the following additional information:
(a) The geologic names, a geologic description, and the estimated depths (measured and true vertical) to the top and bottom of the formation into which hydraulic fracturing fluids are to be injected. The estimated minimum vertical distance between the top of the fracture zone and the nearest usable water zone, and the measured depth of the proposed perforated or open-hole interval.
(b) The estimated depths (measured and true vertical) to the top and bottom of the confining zone(s). Include a map showing the location, orientation, and extent of any known or suspected faults or fractures within one-half mile (horizontal distance) of the wellbore trajectory that may transect the confining zone(s).
(c) A map showing all existing wellbore trajectories, regardless of type, within one-half mile (horizontal distance) of any portion of the wellbore into which hydraulic fracturing fluids are to be injected. The true vertical depth of each wellbore identified on the map must be indicated.
(d) Steps to be taken before treatment to verify mechanical integrity of all downhole tubulars and tools and cement quality, including pressure tests, monitoring of cement returns to surface, and cement evaluation logs (or other logs acceptable to the Superintendent) demonstrating that the occurrences of usable water zones have been isolated to protect them from contamination.
(e) A detailed description of the proposed well-stimulation design, including:
(1) The proposed stimulation fluid, including, but not limited to, the base fluid and each additive by trade name, and purpose of additive;
(2) Proposed proppant system;
(3) The estimated total volume of fluid to be used;
(4) The anticipated surface treating pressure range;
(5) The maximum anticipated surface pressure that will be applied during the hydraulic fracturing process;
(6) The trajectory of the wellbore into which hydraulic fracturing fluids are to be injected and the estimated direction and length of the fractures that will be propagated and a notation indicating the true vertical depth of the top and bottom of the fractures; and
(7) Any microseismic monitoring planned or proposed in conjunction with well stimulation.
(f) The source and location of water supply, such as reused or recycled water, rivers, creeks, springs, lakes, ponds, and water supply wells, and the source and location of water supply, such as reused or recycled water, rivers, creeks, springs, lakes, ponds, and water supply wells.
(g) The storage, mixing, pumping, and control equipment needed to perform the stimulation.
(h) The following information concerning the handling of recovered fluids:
(1) The estimated volume of stimulation fluids to be recovered during flow back;
(2) The proposed methods of handling the recovered fluids including any onsite treatment for re-use of fluids in other stimulation activities; and
(3) The proposed disposal method of the recovered fluids, including, but not limited to, injection, hauling by truck, or transporting by pipeline.
If you are proposing to produce a well, you must submit all of the following information:
(a) The dimensions and the to-scale layout of the wellpad, clearly identifying well locations, noting partial reclamation areas; gathering, separation, metering, and storage equipment; electrical lines; fences; spill control equipment or structures including lined areas, artificial lift equipment, tank batteries, treating and separating vessels, secondary or enhanced recovery facilities, water disposal facilities, gas compression and/or injection facilities; metering points; sales point (if on lease); tanker pick-up points; gas compressor, including size and type (if applicable); and any other well site equipment;
(b) The size, grade, weight, and setting depth of all casing and tubing strings; cementing history; type and size of packers and subsurface flow control devices; top and bottom depths of each completed interval; and method of completion;
(c) The well history, including completions, stimulations, servicing, and workovers;
(d) The minimum specifications for pressure-control equipment, function, and pressure-testing frequency;
(e) The method and means used to transport produced oil and gas, including vehicular transport; flowline and gathering line construction; operation; pipe size; operating pressure; cathodic protection methods; surface equipment use; surface equipment location; maintenance procedures; maintenance schedules; pressure detection methods; and shutdown procedures;
(f) Road and wellpad maintenance plan, including equipment and materials to maintain the road surface and control erosion;
(g) Vegetation management plan on well sites, roads, pipeline corridors, and other disturbed surface areas, including control of exotic species;
(h) Storm water management plan on the well site;
(i) Produced water storage and disposal plan; and
(j) The procedures proposed for well plugging, the depths and the types of plugs, and minimum mud weight.
We will conduct initial review of your application to determine if all information is complete. Once your information is complete, we can begin formal review. If you propose operations in Big Cypress National Preserve, the requirements in § 9.105 apply instead of those in § 9.101 and § 9.102.
(a) Within 30 days after receipt of your application, the Superintendent will notify you in writing that either:
(1) Your application is complete and the NPS will begin formal review;
(2) Your permit application does not meet the information requirements and additional information is required before the NPS will conduct formal review of your permit application; or
(3) More time is necessary to complete the review, in which case the NPS will provide you an estimate of the amount of additional time reasonably needed and an explanation for the delay.
(b) If you resubmit information requested by the NPS under this section and the Superintendent determines that you have met all applicable information requirements, the Superintendent will notify you within 30 days after receipt of the additional information that either:
(1) Your application is complete and the NPS will begin formal review; or
(2) More time is necessary to complete the review, in which case the NPS will provide you an estimate of the amount of additional time reasonably needed and an explanation for the delay.
(a) The Superintendent will evaluate the potential impacts of your proposal on federally owned or administered lands, waters, or resources within NPS units, visitor uses and experiences, and visitor and employee health and safety. As part of this evaluation process, the NPS will comply with all applicable federal laws, including the National Environmental Policy Act of 1969. The Superintendent will then make a recommendation to the Regional Director regarding final action on your operations permit.
(b) As part of the evaluation process, the Superintendent may consult with other Federal, State, and local agencies.
(a) In order to approve your operations permit application, the Regional Director first must determine that your operations:
(1) Will not impair park resources and values under the statute commonly known as the NPS Organic Act;
(2) Will meet all applicable operating standards; and
(3) Will comply with all applicable Federal, State, and local laws and regulations.
(b) Before approval of your permit application, you must submit to the Superintendent:
(1) Financial assurance in the amount specified by the Regional Director and in accordance with the requirements of §§ 9.140 through 9.144; and
(2) Proof of liability insurance with limits sufficient to cover injuries to persons or property caused by your operations.
(a) The Regional Director will take final action within 180 days after the date the NPS deems your application complete unless:
(1) We and you agree that such final action will occur within a shorter or longer period of time; or
(2) We determine that an additional period of time is required to ensure that we have, in reviewing the permit application, complied with other applicable laws, Executive orders, and regulations.
(b) The Regional Director will notify you in writing that your permit application is:
(1) Approved, and provide you a list of required operating conditions; or
(2) Denied, and provide you justification for the denial. Any such denial must be consistent with § 9.30(c).
(a) Within 30 days after the date of submission of your application, we will notify you whether the application contains all information reasonably necessary to allow us to consider the application and, if not, will request that you provide additional information. After receiving this notification, you must either supply any reasonably necessary additional information or must notify us that you believe that the application contains all reasonably necessary information and is therefore complete; whereupon we may:
(1) Within 30 days after receipt of the notice from the applicant, determine that the application does not contain all reasonably necessary additional information and, on that basis, deny the application; or
(2) Review the application and take final action within 60 days after the date that you provided notification to the NPS that your application is complete.
(b) The Regional Director will take final action within 90 days after the date you submitted your application unless:
(1) We and you agree that final action can occur within a shorter or longer period of time; or
(2) We determine that an additional period of time is required to ensure that we have, in reviewing the permit application, complied with other applicable laws, executive orders, and regulations.
(a) You must comply with all operating standards in §§ 9.111 through 9.116, as well as with the standards in §§ 9.117 and 9.118, if applicable. The standards apply only to operations that occur within a park unit, including downhole activities, and do not apply to surface activities located outside a park unit. These operating standards are incorporated into the terms and conditions of your operations permit. Violation of these operating standards will subject you to the prohibitions and penalties provisions of §§ 9.180 through 9.182.
(b) NPS operating standards ensure protection of federally owned administered lands, waters, and resources of NPS units, visitor uses and experiences, and visitor and employee health and safety. The operating standards give us and the operator flexibility to consider using alternative methods, equipment, materials design, and conduct of operations.
(c) In applying standards to a particular operation, you must use technologically feasible, least damaging methods to protect federally owned or administered lands, waters, and resources of NPS units, visitor uses and experiences, and visitor and employee health and safety.
(a) You must design, construct, operate, and maintain access to your operational site to cause the minimum amount of surface disturbance needed to safely conduct operations and to avoid areas the NPS has indicated to you as sensitive resources.
(b) You must install and maintain secondary containment materials and structures for all equipment and facilities using or storing contaminating substances. The containment system must be sufficiently impervious to
(c) You must keep temporarily stored waste in the smallest feasible area, and confine it to prevent escape as a result of percolation, rain, high water, or other causes. You must regularly remove waste from the NPS unit and lawfully dispose of it in a direct and workable timeframe. Under 36 CFR part 6, you may not establish a solid waste disposal site in an NPS unit.
(d) You must use engines that adhere to current Federal and State emission standards.
(e) You must construct, maintain, and use roads to minimize fugitive dust emissions;
(f) You must use equipment and practices that minimize releases or flaring of gas.
(g) You must provide a safe environment for fish and wildlife free from exposure to physical and chemical hazards.
(h) You must control the invasion of exotic plant and animal species in your area of operations from the beginning through final reclamation.
(a) You must not conduct ground-disturbing operations within 500 feet of surface water, including an intermittent or ephemeral watercourse, or wetland; or within 500 feet of any structure or facility used by the NPS for interpretation, public recreation, or administration. The Superintendent may increase or decrease this distance as needed to protect federally owned or administered lands, waters, or resources of NPS units, visitor uses or experiences, or visitor or employee health and safety. Measurements for purposes of this paragraph are by map distance.
(b) You must construct facilities in a manner that maintains hydrologic connectivity between surface water and groundwater.
(c) You must not cause measureable degradation of surface water or groundwater beyond that of existing conditions.
(d) You must conduct operations in a manner that maintains natural processes of erosion and sedimentation.
(a) You must maintain your area of operations in a manner that avoids or minimizes the cause or spread of fires and does not intensify fires originating outside your operations area.
(b) You must maintain structures, facilities, improvements, and equipment in a safe and professional manner in order to provide a safe environment for park resources, park visitors, and NPS employees, free from exposure to physical and chemical hazards.
(c) You must provide site-security measures to protect visitors from hazardous conditions resulting from the conduct of your operations.
(a) You must design, shield, and focus lighting to minimize the effects of spill light on the night sky or adjacent areas.
(b) You must reduce visual contrast in the landscape by selecting the area of operations, avoiding unnecessary disturbance, choosing appropriate colors for permanent facilities, and other means.
(c) You must use road and pad materials similar in structure to soils in surrounding profiles whenever feasible.
You must prevent or minimize all noise that:
(a) Adversely affects the natural soundscape or other park resources or values, taking into account frequency, magnitude, or duration; or
(b) Exceeds levels that have been identified through monitoring as being acceptable to or appropriate for visitor uses at the sites being monitored.
(a) You must promptly clean up and remove any released contaminating substances and provide documentation to the Superintendent that the substances were disposed of in accordance with all applicable Federal, State, and local laws.
(b) You must perform partial reclamation of areas no longer necessary to conduct operations. You must begin final reclamation as soon as possible but no later than 6 months after you complete your permitted operations unless the Regional Director authorizes a longer period in writing.
(c) You must protect all survey monuments, witness corners, reference monuments, and bearing trees against destruction, obliteration, or damage from operations. You are responsible for reestablishment, restoration, and referencing of any monuments, corners and bearing trees that are destroyed, obliterated, or damaged by your operations.
(d) You must complete reclamation by:
(1) Plugging all wells;
(2) Removing all above-ground structures, equipment, and roads and all other man-made material and debris resulting from operations;
(3) Removing or neutralizing any contaminating substances;
(4) Reestablishing native vegetative communities, or providing for conditions where ecological processes typical of the ecological zone (
(5) Grading to reasonably conform the contours to preexisting elevations that are most appropriate to maximizing ecologic functional value;
(6) Restoring conditions to pre-disturbance hydrologic movement and functionality;
(7) Restoring natural systems using native soil material that is similar in character to the adjacent undisturbed soil profiles;
(8) Ensuring that reclaimed areas do not interfere with visitor use or with administration of the unit;
(9) Meeting conditions compatible with the management objectives of the park; and
(10) Ensuring proper and equitable apportionment of reclamation responsibilities by coordinating with us or with other operators who may be using a portion of your area of operations.
If you conduct geophysical operations, you must do all of the following:
(a) Use surveying methods that minimize the need for vegetative trimming and removal;
(b) Locate source points using industry-accepted minimum safe-offset distances from pipelines, telephone lines, railroad tracks, roads, power lines, water wells, oil and gas wells, oil and gas-production facilities, and buildings;
(c) Use equipment and methods that, based upon the specific environment, will minimize impacts to federally owned or administered lands, waters, and resources of NPS units, visitor uses and experiences, and visitor and employee health and safety; and
(d) If you use shot holes, you must:
(1) Use biodegradable charges;
(2) Plug all shot holes to prevent a pathway for migration for fluids along any portion of the bore; and
(3) Leave the site in a clean and safe condition that will not impede surface reclamation or pose a hazard to human health and safety.
If you conduct drilling, stimulation, and production operations, you must meet all of the standards in this section.
(a)
(2) You must not create earthen pits for any use. Earthen pits used solely for secondary containment on sites existing before [effective date of the final rule] may continue in use; however, the Superintendent may require such structures to be lined or removed depending on site-specific operational and environmental conditions.
(3) You must take all necessary precautions to keep your wells under control at all times, use only contractors or employees trained and competent to drill and operate the wells, and use only oil field equipment and practices generally used in the industry.
(4) You must design, implement, and maintain integrated casing, cementing, drilling fluid, completion, stimulation, and blowout prevention programs. These programs must be based upon sound engineering principles to prevent escape of fluids to the surface and to isolate and protect usable water zones throughout the life of the well, taking into account all relevant geologic and engineering factors.
(b)
(2) You must continuously monitor and record the treating pressures and all annular pressures before, during, and after the treatment to ensure that treatment materials are directed to the intended zone.
(3) If mechanical integrity is lost during the treatment, you must immediately cease the operation and notify the Superintendent as soon as feasible, but no later than 24 hours after the incident. Within 15 days after the occurrence, you must submit to the Superintendent a report containing all details pertaining to the incident, including corrective actions taken.
(c)
(2) You must maintain your well to prevent escape of fluids to the surface and to isolate and protect usable water zones throughout the life of the well, taking into account all relevant geologic and engineering factors.
(3) You must identify wells and related facilities by a sign, which must remain in place until the well is plugged and abandoned and the related facilities are closed. The sign must be of durable construction, and the lettering must be legible and large enough to be read under normal conditions at a distance of at least 50 feet. Each sign must show the name of the well, name of the operator, and the emergency contact phone number.
(4) You must remove all equipment and materials that are no longer needed for a particular phase of your operation.
(5) You must plug all wells to:
(i) Prevent a pathway of migration for fluids along any portion of the bore; and
(ii) Leave the surface in a clean and safe condition that will not impede surface reclamation or pose a hazard to human health and safety.
The following terms and conditions apply to all operators, regardless of whether these terms and conditions are expressly included in the operator's operations permit:
(a) The operator/permittee is responsible for ensuring that all of its contractors and subcontractors comply fully with all of the requirements of this subpart;
(b) The operator/permittee may not use any surface water or groundwater owned or administered by the United States that has been diverted or withdrawn from a source located within the boundaries of an NPS unit unless the use has been approved in accordance with NPS policy;
(c) The operator/permittee must provide the NPS an affidavit, signed by an official who is authorized to legally bind the company, stating that proposed operations are in compliance with all applicable federal, state, and local laws and regulations and that all information submitted to the NPS is true and correct; and
(d) The operator/permittee agrees to indemnify and hold harmless the United States and its officers and employees from and against any and all liability of any kind whatsoever arising out of or resulting from the acts or omissions of the operator and its employees, agents, representatives, contractors, and subcontractors in the conduct of activities under the operations permit.
(a) The NPS may access your area of operations at any time to monitor the potential effects of the operations and to ensure compliance with this subpart where applicable.
(b) The Regional Director may determine that third-party monitors are necessary to protect federally owned or administered lands, waters, or resources of NPS units, visitor uses or experiences, or visitor or employee health and safety.
(1) The Regional Director's determination will be based on the scope and complexity of the proposed operation and whether the park has the staff and technical ability to ensure compliance with the operations permit and any provision of this subpart.
(2) A third-party monitor will report directly to the NPS at intervals determined by the Superintendent, and you will be responsible for the cost of the third party monitor. We will make the information reported available to you upon your request.
(c) You must notify the Superintendent of any accidents involving serious personal injury or death and of any fires or spills on the site within 24 hours after the accident occurs. You must submit a full written report on the accident to the Superintendent within 90 days after the accident occurs.
(d) You must notify the Superintendent within 24 hours after the discovery of any cultural or scientific resource you encounter that might be altered or destroyed by your operation. You must cease operations if necessary and leave the discovered resource intact until the Superintendent provides you with instructions. The Superintendent will determine, within 10 working days after notification what action will be taken with respect to the discovery.
(e) Upon the Superintendent's request, you must submit reports or other information necessary to verify compliance with your permit or with any provision of this subpart. To fulfill this request, you may submit to the NPS reports that you have submitted to the State under State regulations, or that you have submitted to any other Federal agency.
If your operations include hydraulic fracturing, you must provide the Superintendent with a report including all of the following details of the stimulation within 30 days after the
(a) The true vertical depth of the well, total water volume used, and a description of the base fluid and each additive in the hydraulic fracturing fluid, including the trade name, supplier, purpose, ingredients, Chemical Abstract Service Number (CAS), maximum ingredient concentration in additive (percent by mass), and maximum ingredient concentration in hydraulic fracturing fluid (percent by mass).
(b) The actual source(s) and location(s) of the water used in the hydraulic fracturing fluid;
(c) The maximum surface pressure and rate at the end of each stage of the hydraulic fracturing operation and the actual flush volume.
(d) The actual, estimated, or calculated fracture length, height and direction.
(e) The actual measured depth of perforations or the open-hole interval.
(f) You must submit the actual volume of stimulation fluids recovered during flow back, including a description of how the volumes were measured or calculated.
(g) The following information concerning the handling of fluids recovered, covering the period between the commencement of hydraulic fracturing and the implementation of the approved permit for the disposal of produced water under NPS requirements:
(1) The methods of handling the recovered fluids, including, but not limited to, transfer pipes and tankers, holding pond use, re-use for other stimulation activities, or injection; and
(2) The disposal method of the recovered fluids, including, but not limited to, the percent injected, the percent stored at an off-lease disposal facility, and the percent recycled.
(h) You must submit continuous monitoring records of annulus pressure at the bradenhead and other annular pressures that document pressures before, during, and after injection operations. You must submit a signed certification that wellbore integrity was maintained throughout the operation.
(a) The Regional Director may grant you the privilege of access on, across, or through federally owned or administered lands or waters in any NPS unit to reach the boundary of your oil and gas right.
(b) In NPS units in Alaska, regulations and standards at 43 CFR part 36 govern access to an operator's oil and gas right.
(a) The Regional Director may charge you a fee if you use federally owned or administered lands or waters outside the scope of your oil and gas right.
(1) If you require use of federally owned or administered lands or waters for your operation, the Regional Director will charge you a fee based on the fair market value of the use of the lands for access.
(2) If access to your mineral right is across an existing park road, the Regional Director will charge the fee according to a posted fee schedule.
(b) Fees under this section will not be charged for access within the scope of your oil and gas right or access to your mineral right that is otherwise provided for by law.
The Regional Director will not charge a fee for access across federally owned or administered lands beyond the scope of your oil and gas right as necessary to respond to an emergency situation at your area of operations if the Regional Director determines that the circumstances require an immediate response to either:
(a) Prevent or to minimize injury to park resources; or
(b) Ensure public health and safety.
Yes. You must file financial assurance with us in a form acceptable to the Regional Director and payable upon demand. This financial assurance is in addition to any financial assurance required by any other regulatory authority.
We will base the financial assurance amount upon the estimated cost for a third-party contractor to complete reclamation in accordance with this subpart. If the cost of reclamation exceeds the amount of your financial assurance, you will remain liable for all costs of reclamation in excess of the financial assurance.
The Regional Director may require, or you may request, an adjustment to the financial assurance amount because of any circumstance that increases or decreases the estimated costs established under § 9.141.
(a) Your responsibility and that of any surety under the financial assurance will continue until either:
(1) The Regional Director determines that you have met all applicable reclamation operating standards and any additional reclamation requirements that may be included in your operations permit; or
(2) A new operator assumes your operations, as provided in §§ 9.160 through 9.161.
(b) You will be notified within 30 days after the Regional Director's determination that your financial assurance has been released.
(a) You will forfeit all or part of your financial assurance if all efforts to secure your compliance with your reclamation responsibilities under the approved permit or any provisions of this regulation are unsuccessful.
(b) If you forfeit your financial assurance, we may:
(1) Prohibit you from removing all structures, equipment, or other materials from your area of operations;
(2) Require you to secure the operations site and take any necessary actions to protect federally owned or administered lands, waters, or resources of NPS units, visitor uses or experiences, or visitor or employee health and safety; and
(3) Suspend review of any permit applications you have submitted until the Regional Director determines that all violations of permit provisions or of any provision of this subpart are resolved.
(4) Seek recovery as provided in § 9.141 for all costs of reclamation in excess of the posted financial assurance.
The Regional Director may modify an approved temporary access or operations permit to adjust to changed conditions or to address unanticipated conditions, either unilaterally or at your request.
(a) To request a modification to your approved permit, you must provide written notice to the Superintendent
(b) If the Regional Director authorizes a modification to your permit, you will receive a written notice that:
(1) Describes the modification required and justification; and
(2) Specifies the time within which you must incorporate the modification into your operations.
(c) You may not implement any modification until you have received the Regional Director's written approval.
Until you meet the requirements of this subpart and the Regional Director accepts the new operator's financial assurance, you remain responsible for compliance with your operations permit and we will retain your financial assurance.
(a) If you were operating without an operations permit, you are subject to §§ 9.120 through 9.122 and §§ 9.180 through 9.182 until the new operator meets the requirements of this subpart and the Regional Director accepts the new operator's financial assurance.
(b) You must notify the Superintendent in writing within 30 calendar days after the date the new owner acquires the rights to conduct operations. Your written notification must include:
(1) The names and addresses of the person or entity conveying the right and the person or entity acquiring the right;
(2) The effective date of transfer;
(3) The description of the rights, assets, and liabilities being transferred and which ones, if any, are being reserved by the previous owner, and
(4) A written acknowledgement from the new owner that the contents of the notification are true and correct.
(a) If another operator transfers operations to you, you must:
(1) Adopt and agree in writing to conduct operations in accordance with all terms and conditions of the previous operator's operations permit; and
(2) File financial assurance with us that is acceptable to the Regional Director and made payable to the NPS.
(b) If the previous operator was granted an exemption under § 9.72, you must provide to the Superintendent:
(1) Documentation demonstrating that you hold the right to operate within an NPS unit; and
(2) The names and addresses of:
(i) The operator;
(ii) The mineral owner;
(iii) Any agents, assignees, designees, lessees, or other representatives of the operator;
(iv) The operator's representative responsible for the overall management of the proposed operations;
(v) The operator's representative responsible for field supervision of the proposed operations; and
(vi) The operator's representative responsible for emergency response for the proposed operations.
Except as provided in § 9.171, you must plug your well when any of the following occurs:
(a) Your drilling operations have ended and you have taken no further action on your well within 60 days;
(b) Your well, which has been completed for production operations, is continuously inactive for a period of 1 year; or
(c) The period approved in your operations permit to maintain your well in shut-in status has expired.
(a) You may apply for either an operations permit or a modification to your approved operations permit to maintain your well in a shut-in status for up to 5 years. The application must include:
(1) An explanation of why the well is shut-in or temporarily abandoned and your future plans for utilization;
(2) A demonstration of the mechanical integrity of both surface and downhole equipment such that there is no migration of fluid from any formation in which it originally occurred or from the surface to the well; and
(3) A description of the manner in which your well, equipment, and area of operations will be maintained.
(b) Based on the information provided under this section, the Regional Director may approve your application to maintain your well in shut-in status for a period up to 5 years.
You may apply for additional extensions by submitting a new application under paragraph (a) of this section.
The following are prohibited:
(a) Operating in violation of terms or conditions of a temporary access permit, or an approved operations permit, or any provision of this subpart;
(b) Damaging federally owned or administered lands, waters, or resources of an NPS unit as a result of failure to comply with the terms or conditions of a temporary access permit, an operations permit, or any provision of this subpart;
(c) Conducting operations without a temporary access permit or operations permit;
(d) Failure to comply with any suspension or revocation order issued under this subpart; and
(e) Failure to comply with any applicable Federal, State, or local laws.
If you engage in a prohibited act described in § 9.180:
(a) You may be subject to a fine or imprisonment, or both, in accordance with 36 CFR 1.3;
(b) The Superintendent may suspend your operations; or
(c) The Regional Director may revoke your approved temporary access permit or operations permit.
Until you comply with this subpart or the terms and conditions of an existing temporary access permit or operations permit, we will not consider any new requests for access to conduct operations within any NPS units.
Yes. If you disagree with a decision of the Regional Director under this subpart, you may file with the Regional Director a written statement describing the alleged factual or legal errors in the original decision and requesting that the Regional Director reconsider the decision. You must file your request for reconsideration within 60 calendar days after your receipt of the Regional Director's decision. The NPS will dismiss as untimely any request for reconsideration received more than 60 days after your receipt of the original decision.
The Regional Director will review his or her original decision and, within 90 days after receipt of your appeal, provide you with a written statement reversing, affirming, or modifying that decision, unless the Regional Director notifies you that he or she needs additional time to review the original
(a) If the Regional Director affirms or modifies his or her original decision after you file a request for reconsideration, you may then file an appeal with the NPS Director within 60 calendar days after your receipt of the Regional Director's decision under § 9.191.
(b) Your appeal must include a statement of exceptions specifying your specific disagreements with the Regional Director's final decision. If you do not file your statement of exceptions within 60 calendar days, your appeal will be dismissed, and the Regional Director's decision will constitute the NPS's final decision on the matter.
(c) If you timely file your statement of exceptions, the Regional Director will forward his or her decision and the record for the appeal to the NPS Director. The record will consist of NPS's official files on the proposed permit application, as well as any documents submitted by the parties upon which the Regional Director based his or her decision. The Regional Director will maintain that record under separate cover and will certify that he or she based the decision on that record. The Regional Director will make the record available to you at your request.
(d) If, upon review, the NPS Director considers the record inadequate, then the NPS Director may require additional appropriate documentation or information, or may remand the case to the Regional Director with appropriate instructions for further action.
(e) Within 45 calendar days from the date the NPS Director receives your statement of exceptions, the Director will make his or her decision in writing. If the Director requires more than 45 calendar days to reach his or her decision, then the Director will notify you and specify the reasons for the delay. The Director's written decision will include:
(1) A statement of facts;
(2) A statement of conclusions; and
(3) An explanation of the reasons upon which he or she based his or her conclusions.
(f) No NPS decision under these regulations that is subject to appeal to the Regional Director or the Director shall be considered final agency action subject to judicial review under 5 U.S.C. 704 until the Director has rendered his or her decision on the matter. The decision of the NPS Director will constitute NPS's final agency action, and no further appeal will lie in the Department from that decision.
(a) Except as provided for in paragraph (b) of this section, during the reconsideration and appeal processes, the decision at issue will be stayed (suspended). The decision will not become effective until the appeals process is completed.
(b) If NPS suspends your operation due to an emergency within your area of operation that poses an immediate threat of injury to federally owned or controlled lands or waters, you have a right to request reconsideration and appeal the decision under §§ 9.190 through 9.194, but the suspension will not be stayed until the threat is corrected.
Where the Superintendent has the authority to make the original decision, requests for reconsideration and appeals may be filed in the manner provided by the preceding sections, except that:
(a) The request for reconsideration will be filed with and decided by the Superintendent;
(b) The appeal will be filed with and decided by the Regional Director; and
(c) The Regional Director's decision will constitute the final agency action on the matter.
(a) Interested parties may view the publicly available documents at the Superintendent's office during normal business hours or by other means prescribed by the Superintendent. The availability for public inspection of information about the nature, location, character, or ownership of park resources will conform to all applicable law and implementing regulations, standards, and guidelines.
(b) The Superintendent will make available for public inspection any documents that an operator submits to the NPS under this subpart except those that you have identified as proprietary or confidential.
(c) For the information required in § 9.122 of this subpart, the operator and the owner of the information will be deemed to have waived any right to protect from public disclosure information submitted through FracFocus or another NPS-designated database. For information required under § 9.122 of this subpart that the owner of the information claims to be exempt from public disclosure and is withheld from the NPS, a corporate officer, managing partner, or sole proprietor of the operator must sign and the operator must submit to the authorized officer an affidavit that:
(1) Identifies the owner of the withheld information and provides the name, address and contact information for a corporate officer, managing partner, or sole proprietor of the owner of the information;
(2) Identifies the Federal statute or regulation that would prohibit the NPS from publicly disclosing the information if it were in the NPS's possession;
(3) Affirms that the operator has been provided the withheld information from the owner of the information and is maintaining records of the withheld information, or that the operator has access and will maintain access to the withheld information held by the owner of the information;
(4) Affirms that the information is not publicly available;
(5) Affirms that the information is not required to be publicly disclosed under any applicable local, State, tribal, or Federal law;
(6) Affirms that the owner of the information is in actual competition and identifies competitors or others that could use the withheld information to cause the owner of the information substantial competitive harm;
(7) Affirms that the release of the information would likely cause substantial competitive harm to the owner of the information and provides the factual basis for that affirmation; and
(8) Affirms that the information is not readily apparent through reverse engineering with publicly available information.
(d) If the operator relies upon information from third parties, such as the owner of the withheld information, to make the affirmations in paragraphs (c)(6) through (8) of this section, the operator must provide a written affidavit from the third party that sets forth the relied-upon information.
(e) The NPS may require any operator to submit to the NPS any withheld information, and any information relevant to a claim that withheld information is exempt from public disclosure.
(f) If the NPS determines that the information submitted under paragraph (e) of this section is not exempt from disclosure, the NPS will make the information available to the public after providing the operator and owner of the information with no fewer than 10 business days' notice of the NPS's determination.
(g) The operator must maintain records of the withheld information until the later of the NPS's release of the operator's financial assurance, or 6 years after completion of hydraulic fracturing operations on Indian lands, or 7 years after completion of hydraulic fracturing operations on Federal lands. Any subsequent operator will be responsible for maintaining access to records required by this paragraph during its operation of the well. The operator will be deemed to be maintaining the records if it can promptly provide the complete and accurate information to NPS, even if the information is in the custody of its owner.
(h) If any of the chemical identity information required in § 9.122 of this subpart is withheld, the operator must provide the generic chemical name in the submission required by § 9.122 of this subpart. The generic chemical name must be only as nonspecific as is necessary to protect the confidential chemical identity, and should be the same as or no less descriptive than the generic chemical name provided to the Environmental Protection Agency.
(a) The Office of Management and Budget (OMB) has reviewed and approved the information collection requirements in 36 CFR part 9, subpart B, and assigned OMB Control Number 1024-XXXX. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. We use the information collected to:
(1) Evaluate proposed operations;
(2) Ensure that all necessary mitigation measures are employed to protect park resources and values; and
(3) Ensure compliance with all applicable laws and regulations.
(b) You may submit comments on any aspect of the information collection requirements to the Information Collection Clearance Officer, National Park Service, 12201 Sunrise Valley Drive, Room 2C114, Mail Stop 242, Reston, VA 20192.
16 U.S.C. 410hh; 16 U.S.C. 3101,
| 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 |