| Page Range | 67621-68242 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 67820 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.25, Retail Order Attribution Program | |
| 80 FR 67827 - Self-Regulatory Organizations; BATS Y-Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 3.22, Concerning Gifts and Gratuities in Relation to the Business of the Employer of the Recipient, and Renaming the Rule “Influencing or Rewarding Employees of Others” | |
| 80 FR 68241 - National Entrepreneurship Month, 2015 | |
| 80 FR 68239 - Military Family Month, 2015 | |
| 80 FR 68237 - Critical Infrastructure Security and Resilience Month, 2015 | |
| 80 FR 67797 - Sunshine Act Meeting | |
| 80 FR 67680 - Proposed Amendments to the Rules of Practice for Trials Before the Patent Trial and Appeal Board; Reopening of Period for Comments | |
| 80 FR 67734 - Proposed Pilot Program Exploring an Alternative Approach to Institution Decisions in Post Grant Administrative Reviews; Reopening of Period for Comments | |
| 80 FR 67833 - Order of Suspension of Trading; In the Matter of American Power Corp. and Locan, Inc. | |
| 80 FR 67834 - Meeting on United States-Korea Free Trade Agreement Environment Chapter Implementation and Environmental Cooperation Commission Meeting Under the United States-Korea Environmental Cooperation Agreement | |
| 80 FR 67704 - Approval of Subzone Status Swisscosmet Corporation New Port Richey, Florida | |
| 80 FR 67704 - Notification of Proposed Production Activity; Zale Delaware, Inc.; Subzone 39F; (Assembly of Jewelry) Irving, Texas | |
| 80 FR 67706 - Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review | |
| 80 FR 67819 - Sunshine Act Meeting | |
| 80 FR 67704 - Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Advance Notification of Sunset Reviews | |
| 80 FR 67734 - Notice Inviting Postsecondary Educational Institutions To Participate in Experiments Under the Experimental Sites Initiative; Federal Student Financial Assistance Programs Under Title IV of the Higher Education Act of 1965, as Amended | |
| 80 FR 67682 - Approval and Promulgation of Implementation Plans; New Mexico; Regional Haze Five-Year Progress Report State Implementation Plan | |
| 80 FR 67638 - Regulated Navigation Area; Herbert C. Bonner Bridge, Oregon Inlet, NC | |
| 80 FR 67626 - Section 108 Loan Guarantee Program: Payment of Fees To Cover Credit Subsidy Costs | |
| 80 FR 67705 - Initiation of Five-Year (“Sunset”) Review | |
| 80 FR 67634 - Section 108 Loan Guarantee Program: Announcement of Fee To Cover Credit Subsidy Costs | |
| 80 FR 67778 - Notice of a Federal Advisory Committee Manufactured Housing Consensus Committee Technical Systems Subcommittee Teleconference | |
| 80 FR 67677 - Drawbridge Operation Regulation; New River, Fort Lauderdale, FL | |
| 80 FR 67635 - Special Local Regulation; Mavericks Surf Competition, Half Moon Bay, CA | |
| 80 FR 67664 - Fisheries of the Northeastern United States; Atlantic Herring Fishery; 2015 Management Area 1A Seasonal Annual Catch Limit Harvested | |
| 80 FR 67664 - Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2015-2016 Biennial Specifications and Management Measures; Inseason Adjustments | |
| 80 FR 67785 - Agency Information Collection Activities: Request for Comments | |
| 80 FR 67742 - Granting of Request for Early Termination of the Waiting Period Under the Premerger Notification Rules | |
| 80 FR 67702 - Notice of Public Meeting of the Kansas Advisory Committee to plan for a public hearing regarding civil rights and voting requirements in the State. The discussion will include approving an agenda of speakers, and logistical setup for the event. | |
| 80 FR 67708 - Takes of Marine Mammals Incidental to Specified Activities; Marine Geophysical Survey in the Eastern Mediterranean Sea, Mid-November to December 2015 | |
| 80 FR 67834 - Mutual Savings Association Advisory Committee | |
| 80 FR 67788 - Notice of Inventory Completion: Texas Archeological Research Laboratory, The University of Texas at Austin, Austin, TX | |
| 80 FR 67730 - Availability of Seats for National Marine Sanctuary Advisory Councils | |
| 80 FR 67786 - Notice of Public Meeting, Pecos District Resource Advisory Council Meeting, Lesser Prairie-Chicken Habitat Preservation Area of Critical Environmental Concern (LPC ACEC) Livestock Grazing Subcommittee New Mexico | |
| 80 FR 67776 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 67771 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 67740 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 80 FR 67739 - Notice of Proposals To Engage in or To Acquire Companies Engaged in Permissible Nonbanking Activities | |
| 80 FR 67767 - Privacy Act of 1974; System of Records Notice | |
| 80 FR 67786 - Filing of Plats of Survey: California | |
| 80 FR 67782 - Marine Mammals; Letters of Authorization To Take Pacific Walrus and Polar Bears, Beaufort and Chukchi Seas, Alaska | |
| 80 FR 67738 - Combined Notice of Filings #2 | |
| 80 FR 67737 - Combined Notice Of Filings #1 | |
| 80 FR 67731 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Construction of the Block Island Transmission System | |
| 80 FR 67782 - Receipt of Incidental Take Permit Applications for Participation in the Oil and Gas Industry Conservation Plan for the American Burying Beetle in Oklahoma | |
| 80 FR 67701 - Notice of the Advisory Committee on Agriculture Statistics Meeting | |
| 80 FR 67805 - Amendment to Postal Product | |
| 80 FR 67764 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approval; Guidance for Industry and Food and Drug Administration Staff-Class II Special Controls Automated Blood Cell Separator Device Operating by Centrifugal or Filtration Separation Principle | |
| 80 FR 67767 - Notice of Interest Rate on Overdue Debts | |
| 80 FR 67788 - Notice of the 2016 Meeting Schedule for Cedar Creek and Belle Grove National Historical Park Advisory Commission | |
| 80 FR 67700 - Notice of Request for Revision to and Extension of Approval of an Information Collection; Importation of Papaya From Colombia and Ecuador | |
| 80 FR 67786 - Notice of Public Meeting and Request for Comments | |
| 80 FR 67701 - Notice of Request for Revision to and Extension of Approval of an Information Collection; Importation of Tomatoes From Certain Central American Countries | |
| 80 FR 67787 - Big Cypress National Preserve Off-Road Vehicle Advisory Committee Charter Renewal | |
| 80 FR 67703 - Submission for OMB Review; Comment Request | |
| 80 FR 67788 - Cancellation of November 6, 2015, Meeting of the Na Hoa Pili O Kaloko-Honokohau National Historical Advisory Commission | |
| 80 FR 67698 - Notice of Request for Revision to and Extension of Approval of an Information Collection; Phytosanitary Export Certification | |
| 80 FR 67699 - Notice of Determination; Changes to the National Poultry Improvement Plan Program Standards | |
| 80 FR 67766 - Science Board to the Food and Drug Administration Advisory Committee; Notice of Meeting | |
| 80 FR 67789 - Certain Iron Mechanical Transfer Drive Components From Canada and China; Institution of Antidumping and Countervailing Duty Investigations and Scheduling of Preliminary Phase Investigations | |
| 80 FR 67790 - Circular Welded Carbon-Quality Steel Pipe From Oman, Pakistan, the Philippines, the United Arab Emirates, and Vietnam | |
| 80 FR 67764 - Health Canada and United States Food and Drug Administration Joint Public Consultation on International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use; Public Webinar; Request for Comments | |
| 80 FR 67795 - NASA Advisory Council; Science Committee; Public Nominations for Subcommittees | |
| 80 FR 67732 - New England Fishery Management Council; Public Meeting | |
| 80 FR 67733 - New England Fishery Management Council; Public Meeting | |
| 80 FR 67794 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Waiver of Service by Registered or Certified Mail | |
| 80 FR 67779 - Proposed Safe Harbor Agreement for the Northern Spotted Owl and Draft Environmental Assessment, Roseburg Resources Company and Oxbow Timber I, LLC, Lane County, OR | |
| 80 FR 67793 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; YouthBuild Impact Evaluation: Youth Follow-Up Surveys | |
| 80 FR 67762 - Agency Information Collection Activities; Proposed Collection; Submission for Office of Management and Budget Review; Prescription Drug Product Labeling; Medication Guide Requirements | |
| 80 FR 67764 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approval; Survey on Occurrence of Foodborne Illness Risk Factors in Selected Retail and Foodservice Facility Types | |
| 80 FR 67835 - Special Medical Advisory Group; Notice of Meeting | |
| 80 FR 67835 - Clinical Science Research and Development Service Cooperative Studies Scientific Evaluation Committee; Notice of Meeting | |
| 80 FR 67835 - Veterans' Rural Health Advisory Committee; Notice of Meeting | |
| 80 FR 67773 - National Institutes of Health, National Institute on Drug Abuse (NIDA) Announcement of Requirements and Registration for “Addiction Research: There's an App for That” Challenge | |
| 80 FR 67793 - Notice of Lodging of Proposed Consent Decree Under the Clean Water Act | |
| 80 FR 67623 - Special Conditions: Embraer Model EMB-545 and EMB-550 Airplanes; Occupant Protection For Side-Facing Seats Forward of Aft-Facing Seats | |
| 80 FR 67621 - Special Conditions: TIMCO Aerosystems, Boeing Model 777-300ER Series Airplanes; Dynamic Test Requirements for Single-Occupant, Oblique (Side-Facing) Seats with Airbag Devices | |
| 80 FR 67761 - Human Immunodeficiency Virus-1 Infection: Developing Antiretroviral Drugs for Treatment; Guidance for Industry; Availability | |
| 80 FR 67740 - Step N Grip, LLC; Analysis To Aid Public Comment | |
| 80 FR 67772 - Center For Scientific Review; Notice of Closed Meetings | |
| 80 FR 67698 - Notice of Advisory Committee on Voluntary Foreign Aid Meeting | |
| 80 FR 67672 - Open Licensing Requirement for Direct Grant Programs | |
| 80 FR 67738 - Information Collection Being Submitted for Review and Approval to the Office of Management and Budget | |
| 80 FR 67689 - Improving Outage Reporting for Submarine Cables and Enhancing Submarine Cable Outage Data | |
| 80 FR 67792 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Application for Federal Firearms License (Collector of Curios and Relics) | |
| 80 FR 67791 - Agency Information Collection Activities; Proposed eCollection eComments Requested; National Response Team Customer Satisfaction Survey | |
| 80 FR 67647 - Approval and Promulgation of Air Quality Implementation Plans; Oklahoma | |
| 80 FR 67681 - Approval and Promulgation of Air Quality Implementation Plans; Oklahoma | |
| 80 FR 67821 - Submission for OMB Review; Comment Request | |
| 80 FR 67819 - Proposed Collection; Comment Request | |
| 80 FR 67805 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Amend the Fees Schedule | |
| 80 FR 67828 - Self-Regulatory Organizations; National Securities Clearing Corporation; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Provide Additional Details Regarding the Requirement that Members Participate in Annual Testing of Business Continuity and Disaster Recovery Plans | |
| 80 FR 67822 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 123D To Specify That Exchange Systems May Open One or More Securities Electronically if a Designated Market Maker Registered in a Security or Securities Cannot Facilitate the Opening of Trading as Required by Exchange Rules | |
| 80 FR 67827 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change To List and Trade Shares of the Global Currency Gold Fund Under NYSE Arca Equities Rule 8.201 | |
| 80 FR 67830 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 123D-Equities To Specify That Exchange Systems May Open One or More Securities Electronically if a Designated Market Maker Registered in a Security or Securities Cannot Facilitate the Opening of Trading as Required by Exchange Rules | |
| 80 FR 67808 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Extend the Pilot Period of the BATS Exchange, Inc.'s Supplemental Competitive Liquidity Provider Program | |
| 80 FR 67810 - SPDR® Series Trust, et al.; Notice of Application | |
| 80 FR 67826 - Submission for OMB Review; Comment Request | |
| 80 FR 67818 - Proposed Collection; Comment Request | |
| 80 FR 67820 - Proposed Collection; Comment Request | |
| 80 FR 67827 - Proposed Collection; Comment Request | |
| 80 FR 67642 - Approval and Promulgation of Air Quality Implementation Plans; Connecticut; Volatile Organic Compound Emissions From Large Aboveground Storage Tanks | |
| 80 FR 67681 - Approval and Promulgation of Air Quality Implementation Plans; Connecticut; Volatile Organic Compound Emissions From Large Aboveground Storage Tanks | |
| 80 FR 67759 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 80 FR 67760 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 80 FR 67757 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 80 FR 67645 - Air Plan Approval; North Carolina; Conflict of Interest Infrastructure Requirements | |
| 80 FR 67822 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval to a Proposed Rule Change, as Modified by Amendment No. 1, 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; Correction | |
| 80 FR 67784 - Proposed Information Collection; Kodiak National Wildlife Refuge Bear Viewing Survey | |
| 80 FR 67795 - NASA Advisory Council; Ad Hoc Task Force on STEM Education; Meeting. | |
| 80 FR 67777 - Current List of HHS-Certified Laboratories and Instrumented Initial Testing Facilities Which Meet Minimum Standards To Engage in Urine Drug Testing for Federal Agencies | |
| 80 FR 67772 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 67702 - Notice of Public Meeting of the South Carolina Advisory Committee for a Meeting To Welcome New Members of the Committee and Discuss Potential Project Topics | |
| 80 FR 68126 - Medicare and Medicaid Programs; Revisions to Requirements for Discharge Planning for Hospitals, Critical Access Hospitals, and Home Health Agencies | |
| 80 FR 67906 - Change in Rates and Classes of General Applicability for Competitive Products | |
| 80 FR 67797 - Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving Proposed No Significant Hazards Considerations and Containing Sensitive Unclassified Non-Safeguards Information and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information | |
| 80 FR 68158 - Defense Materiel Disposition | |
| 80 FR 67652 - Partial Approval and Partial Disapproval of Air Quality State Implementation Plans; Nevada; Infrastructure Requirements for Ozone, NO2 and SO2 | |
| 80 FR 67838 - Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category |
Animal and Plant Health Inspection Service
National Agricultural Statistics Service
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Fish and Wildlife Service
Geological Survey
Land Management Bureau
National Park Service
Alcohol, Tobacco, Firearms, and Explosives Bureau
Federal Aviation Administration
Comptroller of the Currency
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 special conditions; request for comments.
These special conditions are issued for Boeing Model 777-300ER series airplanes. This airplane, as modified by TIMCO Aerosystems, will have novel or unusual design features associated with oblique-angled, single-occupant seats equipped with airbag systems. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The effective date of these special conditions is November 3, 2015. We must receive your comments by December 18, 2015.
Send comments identified by docket number FAA-2015-2123 using any of the following methods:
John Shelden, Airframe and Cabin Safety, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2785; facsimile 425-227-1149.
The FAA has determined that notice of, and opportunity for, prior public comment on these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.
In addition, the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On August 20, 2014, through FAA project no. ST14746AT-T, certification plan no. 13T422R006, TIMCO Aerosystems applied for a supplemental type certificate to allow the installation of oblique passenger seats, positioned at 30 degrees to the vertical plane of the airplane longitudinal centerline, and to include inflatable lap belts, in Boeing Model 777-300ER airplanes. The Boeing Model 777-300ER airplane is a wide-body, swept-wing, conventional-tail, twin-engine, turbofan-powered transport airplane, with seating capacity for 550 passengers and 11 crew members.
TIMCO Aerosystems proposes the installation of oblique (side-facing) B/E Aerospace Super Diamond Business Class (B/C) seats. These seats will include airbag devices for occupant restraint and injury protection.
Under the provisions of § 21.101, TIMCO Aerosystems must show that the 777-300ER, as changed, continues to meet the applicable provisions of the regulations listed in type certificate no. T00001SE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “original type-certification basis.” The regulations listed in type certificate no. T00001SE are as follows:
The type-certification basis for the Model 777-300ER airplane is 14 CFR part 25, effective February 1, 1965, as amended by Amendments 25-1 through 25-98, including special conditions 25-295-SC and 25-187A-SC. In addition, the certification basis includes certain special conditions, exemptions, or later
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777-300ER airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.
The Boeing Model 777-300ER airplane will incorporate the following novel or unusual design features:
Installation of B/E Aerospace Super Diamond Business Class (B/C) seats manufactured by B/E Aerospace in “J” class, to be installed at an angle of 30 degrees to the airplane centerline. These seats will include airbag devices for occupant restraint and injury protection. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for occupants of seats installed in the proposed configuration.
The seating configuration TIMCO Aerosystems proposes is novel and unusual due to the seat installation at 30 degrees to the airplane centerline, the airbag-system installation, and the seat/occupant interface with the surrounding furniture that introduces occupant alignment and loading concerns.
Ongoing research is progressing to establish acceptable occupant-injury limits. Until those limits become available, the FAA proposes a set of interim limits based on the current literature available, current National Highway Traffic Safety Administration (NHTSA) regulations, and preliminary test data from the research program.
The existing regulations do not provide adequate or appropriate safety standards for occupants of oblique-angled seats with airbag systems. To provide a level of safety that is equivalent to that afforded occupants of forward- and aft-facing seats, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement part 25 and, more specifically, supplement §§ 25.562 and 25.785. The requirements contained in these special conditions consist of both test conditions and injury pass/fail criteria.
Amendment 25-15 to part 25, dated October 24, 1967, introduced the subject of side-facing seats, and a requirement that each occupant in a side-facing seat must be protected from head injury by a safety belt and a cushioned rest that will support the arms, shoulders, head, and spine.
Subsequently, Amendment 25-20, dated April 23, 1969, clarified the definition of side-facing seats to require that each occupant of a seat, positioned at more than an 18-degree angle to the vertical plane of the airplane longitudinal centerline, must be protected from head injury by a safety belt and an energy-absorbing rest that will support the arms, shoulders, head, and spine; or by a safety belt and shoulder harness that will prevent the head from contacting any injurious object. The FAA concluded that an 18-degree angle would provide an adequate level of safety based on tests that were performed at that time, and thus adopted that standard.
Part 25 was amended June 16, 1988, by Amendment 25-64, to revise the emergency-landing conditions that must be considered in the design of the airplane. Amendment 25-64 revised the static-load conditions in 14 CFR 25.561, and added the new § 25.562 that requires dynamic testing for all seats approved for occupancy during takeoff and landing. The intent of Amendment 25-64 is to provide an improved level of safety for occupants on transport-category airplanes. Because most seating is forward-facing on transport-category airplanes, the pass/fail criteria developed in Amendment 25-64 focused primarily on these seats. As a result, the FAA issued Policy Memorandums ANM-03-115-30 and PS-ANM-100-2000-00123 to provide the additional guidance necessary to demonstrate the level of safety required by the regulations for side-facing seats, and their mounting plates and adapters.
Special conditions 25-295-SC were issued on August 9, 2005, for the Boeing Model 777, with injury criteria for seats installed at an oblique angle; however, those injury criteria were developed for a seat configuration that provided body support for the occupant, and do not directly address the complex occupant-loading conditions introduced by the oblique seat configuration that is the subject of these new special conditions.
To reflect current research findings, the FAA developed a methodology to address all fully side-facing seats (
Most recently, on September, 30, 2015, the FAA issued special conditions 25-594-SC and 25-596-SC, applicable to the Boeing 747-8 and 777-200, for oblique seats. These new special conditions are identical to both of those special conditions. No public comments were received for those special conditions.
As discussed above, these special conditions are applicable to the Boeing Model 777-300ER airplane. Should TIMCO apply at a later date for a supplemental type certificate to modify any other model included on type certificate no. T00001SE, to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well.
This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability, and affects only the applicant who applied to the FAA for approval of these features on the airplane.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances, and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
In addition to the requirements of § 25.562:
Compliance with § 25.562(c)(5) is required, except that, if the anthropomorphic test device (ATD) has no apparent contact with the seat/structure but has contact with an airbag, a head-injury criterion (HIC) unlimited score in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.
If a seat is installed aft of structure (
The seating system must protect the occupant from experiencing serious neck injury. The assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck-injury potential would be higher for impacts below the airbag-device deployment threshold.
a. The N
b. In addition, peak upper-neck F
c. Rotation of the head about its vertical axis, relative to the torso, is limited to 105 degrees in either direction from forward-facing.
d. The neck must not impact any surface that would produce concentrated loading on the neck.
a. The shoulders must remain aligned with the hips throughout the impact sequence, or support for the upper torso must be provided to prevent forward or lateral flailing beyond 45 degrees from the vertical during significant spinal loading. Alternatively, the lumbar spine tension (F
b. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X-direction) acceleration exceeding 20g must be less than 3 milliseconds as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E, filtered in accordance with SAE International (SAE) J211-1.
c. Occupant must not interact with the armrest or other seat components in any manner significantly different than would be expected for a forward-facing seat installation.
5. Longitudinal test(s), conducted to measure the injury criteria above, must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01-1609. The test(s) must be conducted with an undeformed floor, at the most-critical yaw case(s) for injury, and with all lateral structural supports (armrests/walls) installed.
TIMCO Aerosystems must demonstrate that the installation of seats via plinths or pallets meets all applicable requirements. Compliance with the guidance contained in FAA Policy Memorandum PS-ANM-100-2000-00123, dated February 2, 2000, titled “Guidance for Demonstrating Compliance with Seat Dynamic Testing for Plinths and Pallets,” is acceptable to the FAA.
If inflatable lap belts are installed on single-place side-facing seats, the lap belts must meet Special Conditions no. 25-187A-SC.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for Embraer Model EMB-545 and EMB-550 airplanes. These airplanes will have a novel or unusual design feature associated with a seat configuration of side-facing seats positioned forward of aft-facing seats, and with a structural armrest between the side-facing and aft-facing seats. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The effective date of these special conditions is November 3, 2015. We must receive your comments by December 18, 2015.
Send comments identified by docket number FAA-2015-3368 using any of the following methods:
•
•
•
•
Jayson Claar, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone (425) 227-2194, facsimile (425) 227-1232.
The FAA has determined that notice of, and opportunity for, prior public comment on these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On October 14, 2010, Embraer S.A. applied for an amendment to type certificate no. TC00062IB to include the new Embraer Model EMB-545 airplane. These special conditions allow installation of side-facing seats forward of aft-facing seats in Embraer Model EMB-545 and EMB-550 airplanes.
The Embraer Model EMB-545 airplane is a derivative of the Model EMB-550 airplane currently approved under type certificate no. TC00062IB. As compared to the Model EMB-550, the Model EMB-545 fuselage is one meter shorter. The Model EMB-545 airplane is designed for an eight-passenger configuration and a maximum of nine passengers (including lavatory seat).
Under the provisions of 14 CFR 21.101, Embraer must show that the Model EMB-545 and EMB-550 airplanes meet the applicable provisions of the regulations listed in type certificate no. TC00062IB, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in type certificate no. TC00062IB are as follows:
Title 14, Code of Federal Regulations part 25, effective February 1, 1965, including Amendments 25-1 through 25-129, in their entirety. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, Embraer Model EMB-545 and EMB-550 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
Embraer Model EMB-545 and EMB-550 airplanes will incorporate the following novel or unusual design feature: Side-facing seats installed forward of aft-facing seats.
This issuance of special conditions for side-facing seats installed forward of aft-facing seats requires dynamic seat testing. Such tests are required of all applicants who plan to install side-facing and oblique seating in passenger airplanes.
The intent of the dynamic seat testing is to evaluate airplane seats, restraints, and related interior systems to demonstrate their structural strength and their ability to protect an occupant from serious injuries in a survivable crash. The current regulations (14 CFR 25.561, 25.562, and 25.785) address occupant-injury protection for forward- and aft-facing seats. The FAA has issued special conditions no. 25-495-SC for Embraer Model EMB-545 and EMB-550 airplanes to address the additional occupant-injury protection concerns raised by for side-facing seats. However, the aft occupant of the side-facing seat (see Figure 1 in these special conditions) may interact with the aft-facing seat, a scenario that the regulations do not specifically address.
The aft-facing seat back could deform during the dynamic-test event, and could contact the occupant in the aft side-facing seat. The point that the seat back contacts the occupant could be in an area of the body that has no defined, acceptable, injury-evaluation method, such as the shoulder. This type of contact is addressed in the above-mentioned side-facing-seat special conditions, which prohibit body-to-body contact.
The applicant proposed installing a structural armrest between the side-facing seat and the aft-facing seat to help prevent contact between the aft-facing seat and the aft occupant of the side-facing seat. The FAA believes that this contact would be likely to occur if the structural armrest failed to perform as intended in an emergency landing. Therefore, the purpose of these special conditions is to define the specific structural requirements of the proposed structural armrest, and the additional requirements necessary to protect the seated occupant from both the side-facing seat and the adjacent aft-facing seat.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
These special conditions are applicable to Embraer Model EMB-545 and EMB-550 airplanes. Should Embraer apply at a later date for a change to the type certificate to include another model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well.
This action affects only certain novel or unusual design features on Embraer Model EMB-545 and EMB-550 airplanes. It is not a rule of general applicability, and it affects only those airplanes listed on amended type certificate no. TC00062IB.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Embraer Model EMB-545 and EMB-550 airplanes with side-facing seats installed forward of aft-facing seats.
The applicant must propose a certification strategy for the structural armrest. This strategy must address the structural integrity of the structural armrest, and occupant protection, after a survivable crash. The strategy must define how the applicant will ensure that the installation, when deformed due to the application of static, dynamic, and interaction (with aft-facing seat) loads, and while complying with the applicable 14 CFR 25.561 and 25.562 requirements:
1. The proposed structural armrest will not touch the side-facing seat's aft occupant, and the occupant will not act as an “human cushion;”
2. The backrest of the aft-facing seat will not touch the side-facing seat's aft occupant;
3. The proposed structural armrest will not impose loads to the side-facing seat structure, and;
4. The seat back of the aft-facing seat will not, as a result of contact with the structural armrest, result in damage or deformation of the seat back that could be injurious to the occupant of the aft-facing seat.
In addition, the applicant must:
1. Test the structural armrest with pitch and roll of the seat track to ensure that the armrest continues to protect the occupant of the side-facing seat.
2. Conduct at least two 16G forward-structural tests with the combination of the side-facing seat, structural armrest, and the aft-facing seat. For these tests, the applicant must account for all structural requirements and post-test conditions.
3. Document any load sharing between the side-facing seat, structural armrest, and the aft-facing seat.
4. Address the worst-case floor deformation that:
a. Produces the maximum load into the structural armrest. This includes the load caused by the floor deformation and the load from the aft-facing seat back.
b. allows the aft-facing seat back the most forward dynamic deformation in the area of the side-facing seat's aft occupant. No contact between the aft-facing seat and the side-facing seat aft occupant is acceptable.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Final rule.
This final rule amends HUD's Section 108 Loan Guarantee Program (Section 108 Program) regulations to permit HUD to collect fees from Section 108 borrowers to offset the credit subsidy costs of Section 108 loan guarantees. The Department of Housing and Urban Development Appropriations Acts of 2014 and 2015 authorize HUD, for each of those fiscal years, to collect fees from borrowers to offset the credit subsidy costs for the guaranteed loans. This final rule amends HUD's Section 108 Program regulations to ensure that HUD can begin to make Section 108 loan guarantee commitments without appropriated credit subsidy budget authority, in accordance with applicable law. This final rule follows publication of the February 5, 2015, proposed rule and adopts the proposed rule with minor, clarifying changes to how HUD will determine and announce the amount of the fee. Elsewhere in today's
Paul Webster, Director, Financial Management Division, Office of Block Grant Assistance, Office of Community Planning and Development, Department of Housing and Urban Development, 451 7th Street SW., Room 7180, Washington, DC 20410; telephone number 202-708-1871 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number through TTY by calling the Federal Relay Service, toll-free, at 800-877-8339. Faxed inquiries (but not comments) may be sent to Mr. Webster at 202-708-1798 (this is not a toll-free number).
On February 5, 2015, HUD published a rule in the
HUD's February 5, 2015, rule proposed establishing a new section, § 570.712, entitled “Collection of fees; procedure to determine amount of the fee,” that would provide for the collection of fees for the Section 108 Loan Guarantee Program. Specifically, § 570.712 would provide that when HUD has been authorized to collect a fee for the Section 108 Program and Congress has not appropriated a subsidy for the Section 108 Program or the appropriated subsidy is insufficient to offset the costs of the Section 108 loan guarantees, HUD will collect a fee for the program. When such conditions occur, HUD stated that it would announce through notice published in the
In addition to establishing the new § 570.712, the February 5, 2015, rule proposed related amendments to other sections of part 570, subpart M, to implement the authority to charge Section 108 borrowers a fee. Specifically, HUD proposed amending § 570.701 (Definitions) to add a definition of “credit subsidy cost” to mean the estimated long-term cost to the Federal Government of a Section 108 loan guarantee or a modification thereof, calculated on a net present value basis, excluding administrative costs and any incidental effects on governmental receipts or outlays. HUD based this definition on the definition of “cost” in the Federal Credit Reform Act of 1990
To facilitate the payment of these charges, HUD's February 5, 2015, rule proposed permitting the payment of these fees from guaranteed loan proceeds. HUD proposed amending § 570.703 (Eligible activities) to provide that guaranteed loan funds may be used for the payment of fees charged by HUD, when the fees are paid from the disbursement of guaranteed loan funds. In addition, to notify the public of plans to use grant funds or loan proceeds to pay the fee, HUD proposed changes to § 570.704 (Application requirements) to require that applicants include the estimated amount of the fee to be paid in the application for loan guarantee assistance. Use of grant funds for fees or payments of principal and interest would also need to be included in each applicant's consolidated plan.
Finally, HUD proposed amending § 570.200(a)(3)(iii) to clarify that when the fee is paid from the proceeds of a guaranteed loan, grant funds used to repay that loan would not be subject to the requirement that not less than 70
In addition to the February 5, 2015, proposed rule, HUD published a notice on February 5, 2015, at 80 FR 6469, proposing the amount of the fee that HUD would collect in FY 2015 to offset the credit subsidy costs to the Federal Government for making a loan guarantee. Specifically, HUD proposed a fee of 2.42 percent of the principal amount of the loan, proposed to make that fee effective in FY 2015 after available credit subsidy appropriations were depleted, and solicited public comment on the amount of the fee. HUD's February 5, 2015, notice was consistent with § 570.712(b)(2) of the proposed rule, which provided that HUD would publish a notice to establish the fee to pay the credit subsidy costs. HUD stated that it anticipated issuing fee notices before the beginning of the applicable fiscal year, with an effective date of the beginning of the fiscal year, and may provide updated notices as necessary. Furthermore, HUD stated that it would periodically publish the estimated subsidy cost and fee as part of the President's Budget.
HUD stated in its February 5, 2015, proposed rule that the Department of Housing and Urban Development Appropriations Act, 2014,
Both the Senate Report (S. Rep. No. 113-182) accompanying the Senate's FY 2015 Transportation, Housing and Urban Development and Related Agencies Appropriation bill and the House Report (H.R. Rep. No. 113-464) accompanying the House's FY 2015 Transportation, Housing and Urban Development and Related Agencies Appropriation bill support the conversion of the Section 108 Program to a fee-based program. The Senate Report states that the Senate Committee on Appropriations expects HUD to move quickly to complete the rulemaking process and clearly communicate program costs and requirements to communities. The Committee concludes that it expects HUD to ensure that a financing structure is in place by the beginning of the fiscal year to ensure that this important program remains available to communities.
This final rule is consistent with the expectations expressed in the Senate Report. As discussed in this preamble, to assist with the conversion to a fee-based financing mechanism, the Section 108 Program allows Section 108 borrowers to include the fee in the guaranteed loan amount. Borrowers would also have the option to use existing statutory authority that permits the fee to be paid with CDBG funds.
The public comment period for the February 5, 2015, proposed rule and notice closed on March 9, 2015. HUD received 10 comments on the rule and 8 comments on the notice by the close of the public comment period. Commenters included State governments, cities, trade associations, and housing development organizations, and addressed issues including the need for the fee, the amount of the fee, and the basis for the fee. The following section of this preamble summarizes the significant issues raised by the commenters on the February 5, 2015, proposed rule and notice and HUD's responses to these comments. Because similar comments were received on the rule and the notice, HUD is addressing all public comments in this final rule.
After considering the public comments received, HUD has decided to adopt the February 5, 2015, proposed rule with minor, clarifying changes. HUD is clarifying § 570.712(a) to provide that program income may be used to pay the fee. HUD is also clarifying § 570.712(b)(1) to provide that the amount of the fee shall be based on the date of the loan guarantee commitment. Finally, HUD is clarifying § 570.712(b)(2) to more accurately describe how it will announce its intent to impose the fee. Specifically, HUD is clarifying § 570.712(b)(2) to provide, as discussed in the preamble of the February 5, 2015, proposed rule, that it would announce the fee through notice published in the
Given the timing of the publication of the final rule and the availability of appropriated budget authority to defray the credit subsidy cost, HUD has decided not to impose a fee with respect to FY 2015 loan guarantee commitments. After considering the public comments received, HUD is establishing the fee at 2.58 percent of the principal amount of the loan disbursements for loan guarantee commitments awarded in FY 2016. The change in the amount of the fee is based on reasons given in the notice being published elsewhere in today's
Another commenter stated that because HUD limits an entitlement community to borrowing up to five
Another commenter stated that the Section 108 Program is set up to ensure payment is made to the bondholders on time through a pledge of grantees' CDBG lines of credit and collateral for each loan to secure approximately 125 percent of the loan amount. Because these mechanisms are in place to safeguard the loans, the commenter questioned the reason a fee is being proposed. The commenter stated that it appears that HUD does not recognize the impact of the fee on borrowers despite permitting the credit subsidy fees to be paid with proceeds from the Section 108 Loan Guarantee Program or by using CDBG funds.
Other commenters stated that they did not understand the justification for the proposed 2.42 percent fee. According to these commenters, the notice states that the fee “would cover the cost associated with making a loan guarantee,” however, the notice also states that the fee is based on assumptions on default frequency, recovery rates on collateral, the composition of the Section 108 loan portfolio by the end users, and nebulous “other factors” that HUD deems relevant. The commenters stated that there has never been a default in the history of Section 108 in which HUD has had to invoke full faith and credit or pay out any guarantee. The commenters suggested that the fee be based on costs related to the sale of notes and actual loan issuance, rather than the loan default and other costs mentioned in the notice. One commenter asked, “If there are other costs related to the sale of notes and actual loan issuance that are no longer subsidized, why is that not the major focus of discussion?”
Regarding the recommendation to focus on costs of issuance in lieu of default costs, the fee specified in HUD's proposed rule and related notice would only be imposed to reduce the credit subsidy cost for the Section 108 Program to zero. This final rule defines
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This rule implements HUD's statutory authority to collect fees from borrowers to cover the credit subsidy costs of loan guarantees. As discussed in this preamble, HUD assists Section 108 borrowers' transition to a fee-based financing mechanism by allowing borrowers to include the fee in the guaranteed loan amount. This rule also permits borrowers to pay the fee with pledged CDBG funds. The amount of the fee would be determined by the amount required to fully offset the credit subsidy cost of the loan guarantees.
The 2015 HUD Appropriations Act does not appropriate credit subsidy budget authority for the Section 108 Program but requires that HUD charge borrowers a fee to result in a credit subsidy cost of zero. As a result, this rule reflects statutorily authorized actions which HUD determined that it must take to ensure uninterrupted operation of the Section 108 Loan Guarantee Program. By allowing borrowers to include the fee in the guaranteed loan amount or pay the fee with grant funds, guaranteed loan funds, or program income, HUD has strived to minimize the impact that imposing a fee may otherwise have on the program. Accordingly, it is HUD's determination that this rule does not have a significant economic impact on a substantial number of small entities.
In accordance with 24 CFR 50.19(c)(6), this rule involves establishment of a rate or cost determination and related external administrative requirements and procedures which do not constitute a development decision that affects the physical condition of specific project areas or building sites. Accordingly, under 24 CFR 50.19(c)(6), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This rule does not have federalism implications and does not impose substantial direct compliance costs on State and local governments nor preempt State law within the meaning of the Executive order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and on the private sector. This rule does not impose any Federal mandates on any State, local, or tribal governments, or on the private sector, within the meaning of UMRA.
The Catalog of Federal Domestic Assistance (CFDA) program number for the Section 108 Loan Guarantee program is 14.248.
Administrative practice and procedure, American Samoa, Community Development Block Grants, Grant programs—education, Grant programs—housing and community development, Guam, Indians, Loan programs—housing and community development, Low and moderate income housing, Northern Mariana Islands, Pacific Islands Trust Territory, Puerto Rico, Reporting and recordkeeping requirements, Student aid, Virgin Islands.
Accordingly, for the reasons described in the preamble, HUD amends 24 CFR part 570 as follows:
42 U.S.C. 3535(d) and 5301-5320.
(a) * * *
(3) * * *
(iii) Funds expended for the repayment of loans guaranteed under the provisions of subpart M of this part (including repayment of the portion of a loan used to pay any issuance, servicing, underwriting, or other costs as may be incurred under § 570.705(g)) shall also be excluded;
(n) Payment of fees charged by HUD pursuant to § 570.712.
(a) * * *
(1) * * *
(i) * * *
(D) A description of any CDBG funds, including guaranteed loan funds and grant funds, that will be used to pay fees required under § 570.705(g). The description must include an estimate of the amount of CBDG funds that will be used for this purpose. If the applicant will use grant funds to pay required fees, it must include this planned use of grant funds in its consolidated plan.
(v) If an application for loan guarantee assistance is to be submitted by an entitlement or nonentitlement public entity simultaneously with the public entity's submission for its grant, the public entity shall include and identify in its proposed and final consolidated plan the activities to be undertaken with the guaranteed loan funds, the national objective to be met by each of these activities, the amount of any program income expected to be received during the program year, and the amount of guaranteed loan funds to be used. The public entity shall also include in the consolidated plan a description of the pledge of grants, as required under § 570.705(b)(2), and the use of grant funds to pay for any fees required under § 570.705(g). In such cases the proposed and final application requirements of paragraphs (a)(1)(i), (iii), and (iv) of this section will be deemed to have been met.
(c) * * *
(2) [Reserved]
(c)
(g)
(2) Each public entity or its designated public agency and each State issuing debt obligations under this subpart must pay any and all fees charged by HUD pursuant to § 570.712.
This section contains additional procedures for guarantees of debt obligations under section 108 when HUD is required or authorized to collect fees to pay the credit subsidy costs of the loan guarantee program.
(a)
(b)
(2) HUD shall publish in the
Office of the Assistant Secretary for Community Planning and Development, HUD.
Announcement of fee.
This document announces the fee that HUD will collect from borrowers of loans guaranteed under the HUD's Section 108 Loan Guarantee Program (Section 108 Program) to offset the credit subsidy costs of the guaranteed loans pursuant to commitments awarded in FY 2016, as authorized by the Continuing Appropriations Act, 2016. Elsewhere in today's
Paul Webster, Director, Financial Management Division, Office of Block Grant Assistance, Office of Community Planning and Development, Department of Housing and Urban Development, 451 7th Street SW., Room 7180, Washington, DC 20410; telephone number 202-708-1871 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339. FAX inquiries (but not comments) may be sent to Mr. Webster at 202-708-1798 (this is not a toll-free number).
Elsewhere in today's
This document sets the fee for Section 108 loan disbursements under loan guarantee commitments awarded in FY 2016 at 2.58 percent of the principal amount of the loan. HUD will collect this fee from borrowers of loans guaranteed under the Section 108 Program to offset the credit subsidy costs of the guaranteed loans pursuant to commitments awarded in FY 2016, as authorized by the Continuing Appropriations Act, 2016 (Pub. L. 114-53, approved September 30, 2015). The calculation of the FY 2016 fee, which was specified in the FY 2016 President's Budget,
As described in HUD's February 5, 2015, notice, HUD's credit subsidy calculation is based on the amount required to fully offset the credit subsidy cost to the Federal government associated with making a Section 108 loan guarantee. As a result, HUD's credit subsidy cost calculations incorporated assumptions based on: (i) Data on default frequency for municipal debt where such debt is comparable to loans in the Section 108 loan portfolio; (ii) data on recovery rates on collateral security for comparable municipal debt; (iii) the expected composition of the Section 108 portfolio by end users of the guaranteed loan funds (
Taking these factors into consideration, HUD determined that the fee for disbursements made under loan guarantee commitments awarded in FY 2016 is 2.58 percent, which will be applied only at the time of loan disbursements. Note that future notices may provide for a combination of up-front and periodic fees for loan guarantee commitments awarded in future fiscal years but will be subject to the public comment provisions of § 570.712(b)(2) of the final rule.
As HUD discusses in response to public comment on the amount of the fee, the expected cost of a Section 108 loan guarantee is difficult to estimate using historical program data because there have been no defaults in the history of the program that required HUD to invoke its full faith and credit guarantee or use the credit subsidy reserved each year for future losses.
The fee of 2.58 percent of the principal amount of the loan will offset the expected cost to the government due to default, financing costs, and other relevant factors. To arrive at this measure, HUD analyzed data on comparable municipal debt over an extended 16 to 23 year period. The estimated rate is based on the default and recovery rates for general purpose municipal debt and industrial development bonds. The cumulative default rates on industrial development bonds (14.62 percent) were higher than the default rates on general purpose municipal debt (0.25 percent) during the period from which the data were taken. (The recovery rates for industrial development bonds and general purpose debt were 74.76 and 90.27 percent, respectively.) These two subsectors of municipal debt were chosen because their purposes and loan terms most closely resemble those of Section 108 guaranteed loans. In this regard, Section 108 guaranteed loans can be broken down into two categories: (1) Loans that finance public infrastructure and activities to support subsidized housing (other than financing new construction) and (2) other development projects (
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary special local regulation in the navigable waters of Half Moon Bay, CA, near Pillar Point in support of the Mavericks Surf Competition, an annual invitational surf competition held at the Mavericks Break. This special local regulation will temporarily restrict vessel traffic in the vicinity of Pillar Point and prohibit vessels and persons not participating in the surfing event from entering the surf competition area. This regulation is necessary to provide for the safety of life on the navigable waters immediately prior to, during, and immediately after the surfing competition, which is held only one day during the period of November 1, 2015, through March 31, 2016.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rulemaking, call or email Lieutenant Junior Grade Christina Ramirez, U.S. Coast Guard Sector San Francisco; telephone (415) 399-3585, email at
The Mavericks Surf Competition is a one day “Big Wave” surfing competition between the top 24 big wave surfers. The competition only occurs when 15-20 foot waves are sustained for over 24 hours and are combined with mild easterly winds of no more than 5-10 knots. The rock and reef ridges that make up the sea floor of the Pillar Point area, combined with optimal weather conditions, create the large waves that Mavericks is known for. Due to the hazardous waters surrounding Pillar Point at the time of the surfing competition, the Coast Guard is establishing a special local regulation in the vicinity of Pillar Point that restricts navigation in the area of the surf competition and in neighboring hazardous areas.
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to
Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
Under 33 CFR 100.35, the Coast Guard District Commander has authority to promulgate certain special local regulations deemed necessary to ensure the safety of life on the navigable waters immediately before, during, and immediately after an approved regatta or marine parade. The Commander of Coast Guard District 11 has delegated to the Captain of the Port (COTP) San Francisco the responsibility of issuing such regulations.
The Cartel Management Inc. will sponsor the Mavericks Surf Competition. The Mavericks Surf Competition will take place on a day that presents favorable surf conditions on one day during the period from November 1, 2015, through March 31, 2016, from 6 a.m. until 6 p.m. in the navigable waters of Half Moon Bay, CA near Pillar Point in approximate position 37°29′34″ N., 122°30′02″ W. (NAD 83) as depicted in National Oceanic and Atmospheric Administration (NOAA) Chart 18682. The regulation is issued to establish a regulated area on the waters surrounding the competition. This regulated area is bounded by an arc extending 1000 yards from Sail Rock (37°29′34″ N., 122°30′02″ W.) excluding the waters within Pillar Point Harbor. The regulated area is necessary to ensure the safety of mariners transiting the area.
The Coast Guard will enforce a regulated area in navigable waters defined by an arc extending 1000 yards from Sail Rock between 6 a.m. and 6 p.m. on the day of the actual competition. Mavericks Surf Competition can only occur when 15-20 foot waves are sustained for over 24 hours and are combined with mild easterly winds of no more than 5-10 knots. Unpredictable weather patterns and the event's narrow operating window limit the Coast Guard's ability to notify the public of the event. The Coast Guard will issue notice of the event as soon as practicable, but no later than 24 hours before competition day via the Broadcast Notice to Mariners and will issue a written Boating Public Safety Notice at least 24 hours in advance of Competition day. Also, the zones that would be established by this rule will be prominently marked by at least 8 buoys throughout the course of the event.
The Mavericks Surf Competition will occur in the navigable waters of Half Moon Bay, CA, in the vicinity of Pillar Point as depicted in National Oceanic and Atmospheric Administration (NOAA) Chart 18682. The Coast Guard will enforce a regulated area defined by an arc extending 1000 yards from Sail Rock (37°29′34″ N., 122°30′02″ W.) excluding the waters within Pillar Point Harbor. All restrictions would apply only between 6 a.m. and 6 p.m. on the day of the actual competition.
The effect of this regulation will be to restrict navigation in the vicinity of Pillar Point during the Mavericks Surf Competition. During the enforcement period, the Coast Guard will direct the movement and access of all vessels within the regulated area. The regulated area will be divided into two zones. Zone 1 will be designated as the competition area, and the movement of vessels within Zone 2 will be controlled by the Patrol Commander (PATCOM).
This regulation is needed to keep spectators and vessels a safe distance away from the event participants and the hazardous waters surrounding Pillar Point. Past competitions have demonstrated the importance of restricting access to the competition area to only vessels in direct support of the competitors. Failure to comply with the lawful directions of the Coast Guard could result in additional vessel movement restrictions, citation, or both.
We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.'s, and we discuss First Amendment rights of protestors.
E.O.s 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget.
We expect the economic impact of this rule does not rise to the level of necessitating a full Regulatory Evaluation. The regulated area and associated regulations are limited in duration, and are limited to a narrowly tailored geographic area. In addition, although this rule restricts access to the waters encompassed by the regulated area, the effect of this rule will not be significant because the local waterway users will be notified via public Broadcast Notice to Mariners to ensure the regulations will result in minimum impact. The entities most likely to be affected are small commercial vessels, and pleasure craft engaged in recreational activities.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.
This rule may affect small commercial vessels, and pleasure craft engaged in recreational activities and sightseeing. This regulated area would not have significant economic impact on a substantial number of small entities for the following reasons. This regulated area would be activated, and thus subject to enforcement, for a limited duration. The maritime public will be advised in advanced of this regulated area via Broadcast Notice to Mariners.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
Also, this rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a regulated area of an arc extending 1000 yards and lasting less than 12 hours. It is categorically excluded from further review under paragraph 34(h) and 35(b) of Figure 2-1 of Commandant Instruction M16475.lD. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Marine safety, Navigation (water), Reporting and recordkeeping requirements, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233; 33 CFR 1.05-1.
(a)
(b)
(c)
(d)
(1) Only support vessels may be authorized by the Patrol Commander (PATCOM) to enter Zone 1 during the competition.
(2) Entering the water in Zone 1 by any person other than the competitors is prohibited. Competitors may enter the water in Zone 1 from authorized support vessels only.
(3) Spectator vessels and support vessels within Zone 2 must maneuver as directed by PATCOM. Given the changing nature of the surf in the vicinity of the competition, PATCOM may close Zone 2 to all vessels due to hazardous conditions. Due to weather and sea conditions, the Captain of the Port may deny access to Zone 2 and the remainder of the regulated area to all vessels other than competitors and support vessels on the day of the event
(4) Entering the water in Zone 2 by any person is prohibited.
(5) Rafting and anchoring of vessels are prohibited within the regulated area.
(6) Only vessels authorized by the PATCOM will be permitted to tow other watercraft within the regulated area.
(7) Spectator and support vessels in Zones 1 and 2 must operate at speeds which will create minimum wake, in general, 7 miles per hour or less.
(8) When hailed or signaled by the PATCOM by a succession of sharp, short signals by whistle or horn, the hailed vessel must come to an immediate stop and comply with the lawful directions issued. Failure to comply with a lawful direction may result in additional operating restrictions, citation for failure to comply, or both.
(9) During the events, vessel operators may contact the PATCOM on VHF-FM channel 13.
Coast Guard, DHS.
Final rule.
The Coast Guard is establishing a Regulated Navigation Area (RNA) on the navigable waters of Oregon Inlet, NC surrounding the Herbert C. Bonner Bridge. This RNA will allow the Coast Guard to enforce vessel traffic restrictions within the RNA when necessary to safeguard people and vessels from the hazards associated with potential catastrophic structural damage that could occur due to vessel allisions with the bridge.
This rule is effective on December 3, 2015.
Comments received from the public, as well as documents mentioned in this preamble are part of Docket Number USCG-2014-0987. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LT Derek Burrill, Waterways Management Division Chief, U.S. Coast Guard Sector North Carolina, telephone (910) 772-2230, email
On December 17, 2014, we published an interim final rule and request for comments entitled “Regulated Navigation Area; Herbert C. Bonner Bridge, Oregon Inlet, North Carolina” in the
This rulemaking is authorized by 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; and DHS Delegation No. 0170.1. Under these authorities the Coast Guard may establish a RNA in defined water areas that are determined to have hazardous conditions and in which vessel traffic can be regulated in the interest of safety. The purpose of this RNA is to reduce the risk of a bridge strike resulting from a vessel transiting through alternative spans of the Herbert C. Bonner Bridge, which are not intended for navigation. In addition, this RNA will serve to ensure vessels transiting the area are restricted to those that may do so safely, and will not impose unnecessary risk of harm to themselves or other maritime traffic. A bridge strike to un-fendered or unprotected structural elements of the Bonner Bridge would introduce a clear and present danger to stability of the bridge, motorists, mariners, and indirect impacts on local businesses and residents of Hatteras Island, NC. A grounded vessel in this heavily trafficked waterway would also greatly increase the risk of a bridge strike by another vessel.
When shoaling is present in the vicinity of the navigation span, vessels attempt to transit through alternate spans. Transiting through alternate spans is hazardous. Mariners transiting near and through the unprotected structural components increase the potential of a bridge strike; these spans do not have fenders or other mechanisms to protect the bridge from vessel strikes. Vessels that transit alternate bridge spans pose a risk to safe navigation as there are no advertised
The Coast Guard has also considered the 2006 North Carolina Department of Transportation (NC DOT) biennial bridge inspection in accordance with National Bridge Inspection Standards (NBIS) for the Herbert C. Bonner Bridge. This report takes into account the substructure and superstructure inspections along with analysis of the maritime navigational and motor vehicle concerns. The report noted weakened pile supports as a result of section loss and substructure erosion to the point of showing exposed rebar. Publically available information provided by NC DOT indicates that the Herbert C. Bonner Bridge has a very low sufficiency rating. The Herbert C. Bonner Bridge is the only vehicular access to Hatteras Island for residents, commercial vendors, and business owners transiting from Nags Head-Bodie Island to Hatteras Island. The Bonner Bridge is subject to heavy traffic volume, particularly during the summer tourist season. Risks to the lives of mariners, vehicle motorist and passengers, have been considered in the development of this rulemaking.
The Coast Guard received a total of five comments coming from two submitters on the Interim Final Rule. No public meeting was requested, and none was held.
Two comments were received about the possible economic effects of the interim rule on small entities and local economies. Specifically, the comments expressed concern that the RNA if utilized would have significant negative impact on commercial and recreational mariners and the regional economy because alternate routes around Oregon Inlet are distant.
As noted in the Interim Final Rule, there are alternate routes for vessels bound for Oregon Inlet, North Carolina and inland waterfront communities, including Wanchese, NC. Those alternate routes include transiting through Beaufort Inlet or Chesapeake Bay and the Atlantic Intracoastal Waterway and Sounds of North Carolina. The distance from Oregon Inlet Lighted Whistle Buoy “OI” to Wanchese, North Carolina via Beaufort Inlet, the Atlantic Intracoastal Waterway and Pamlico Sound is approximately 190 nautical miles. The distance from Oregon Inlet Lighted Whistle Buoy “OI” to Wanchese, North Carolina via Chesapeake Bay, the Atlantic Intracoastal Waterway and Albemarle Sound is approximately 200 nautical miles.
No change to the rule were made based on these comments because alternate access routes exist and should significant hazardous conditions be evident the potential risk of loss of life, damage to the bridge, and the impact on access to Hatteras Island outweighs the benefits of permitting navigation in the vicinity or under the Bonner Bridge. Additionally, the Coast Guard has and will continue to use all available resources to safely and efficiently monitor the conditions of the designated waters of this RNA to minimize impacts to the waterway users. Should the need arise for the Coast Guard to restrict vessel traffic in the RNA based on shoaling, hazardous conditions or severe weather conditions, these restrictions would be imposed for certain vessels who, in the discretion of the COTP, pose a safety risk to the bridge structure. Given this limited scope of restriction, any negative economic impact would be minimal and strongly outweighed by the associated safety concerns.
One comment was received that the rule does not provide sufficient notice regarding what types of vessels will be allowed to transit through the RNA when enforced. The comment acknowledged the Coast Guard authority to designate vessel characteristics of vessels which may navigate within the RNA but suggested that the RNA allow all vessels under 65 feet in length, with a draft of less than 6 feet and a tonnage under 50 tons to continue navigating in the vicinity of the RNA when being enforced.
The Coast Guard wants to impose the appropriate restrictions based on the conditions in the inlet. The Oregon Inlet waterway is constantly changing: Hurricanes and strong low pressure systems (
A change to the notification aspect of the rule was made based on this comment. As noted in the NPRM the Coast Guard will notify the public of restrictions via Local Notice to Mariners, Broadcast Notice to Mariners and via other methods described in 33 CFR 165.7. Also, Coast Guard personnel may be on-scene to advise the public of enforcement of any restrictions on vessel navigation within the RNA. In 33 CFR 165.520(c)(3), a provision was added so that the Coast Guard will also notify the maritime community of any imposed RNA restrictions or impacts to navigation through the U.S. Coast Guard HOMEPORT Web site and Marine Safety Information Bulletins. Additionally, the Coast Guard will notify recognized commissions and/or committees appointed by the Dare County, North Carolina elected officials who represent commercial and recreational mariner interests in Oregon Inlet, North Carolina, when practicable, prior to imposing restrictions pursuant to enforcement of the RNA. The rule also allows the COTP or his/her designated representative to permit vessel access on a case-by-case basis should heavy vessel traffic be present.
One comment was received that stated the Coast Guard should not have issued an Interim Final Rule as broad and restrictive as the Herbert C. Bonner Bridge RNA without first undertaking notice and comment procedures. The commenter felt that other Coast Guard RNA's were established using a notice and comment period and recommended replacing the Interim Final Rule with a temporary rule establishing a limited duration RNA and form a working group to determine what type of vessels and under what circumstances these vessels may navigate in Oregon Inlet.
No changes to the rule were based on these comments. The Coast Guard issued this interim final rule without prior notice and opportunity to comment before being enforceable pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are
Additionally, the Interim Final Rule was issued with a 30 day request for comments to solicit and consider information in issuing a Final Rule from those entities that may be impacted by this rule.
One comment was received stating notification of the RNA requirements when enforced is critical due to the amount vessel traffic which utilizes the inlet, especially in the summer months.
One change to the rule was made based on this comment.
As noted in the NPRM the Coast Guard will notify the public of restrictions via Local Notice to Mariners, Broadcast Notice to Mariners and via other methods described in 33 CFR 165.7. Also, Coast Guard personnel may be on-scene to advise the public of enforcement of any restrictions on vessel navigation within the RNA. In 33 CFR 165.520(c)(3), a provision was added so that the Coast Guard will also notify the maritime community of any imposed RNA restrictions or impacts to navigation through the U.S. Coast Guard HOMEPORT Web site and Marine Safety Information Bulletins. Additionally, the Coast Guard will notify recognized commissions and/or committees appointed by the Dare County, North Carolina elected officials who represent commercial and recreational mariner interests in Oregon Inlet, North Carolina, when practicable, prior to imposing restrictions pursuant to enforcement of the RNA. The rule also allows the COTP or his/her designated representative to permit vessel access on a case-by-case basis should heavy vessel traffic be present.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
This regulation will restrict access within the Regulated Navigation Area at Oregon Inlet and the Herbert C. Bonner Bridge, the effect of this rule will not be significant because: (i) The Coast Guard will make extensive notifications of the regulated area to the maritime public via maritime advisories so mariners can adjust their plans accordingly; (ii) these restrictions will only be imposed based on the extent of shoaling, hazardous conditions and severe weather in the area, and will only be imposed on vessels that exceed certain size restrictions; and (iii) vessels impacted by this regulation may request permission from Commander Coast Guard Sector North Carolina/COTP North Carolina to transit the regulated area on a case by case basis.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. The regulation may have an economic impact on vessels that normally transit Oregon Inlet. These small entities are primarily commercial and recreational fishing vessels. Operation of vessels of certain characteristics in this RNA will be prohibited from transiting Oregon Inlet by the Captain of the Port (COTP) or designated representative when shoaling in the vicinity of the Herbert C. Bonner Bridge creates unsafe condition for vessels. The potential risk of loss of life, damage to the bridge, and the impact on access to Hatteras Island outweighs the benefits of permitting navigation in the vicinity or under the Bonner Bridge.
Although the Oregon Inlet area is used by many small entities, including commercial and recreational fishing businesses, alternate routes are available to vessels. The Coast Guard will make extensive notifications of the regulated navigation area to the maritime public via maritime advisories so mariners can adjust their plans accordingly; and in extreme circumstances, vessels prohibited from entry may request permission from Commander Coast Guard Sector North Carolina/COTP North Carolina to transit the RNA on a case by case basis. Moreover the restrictions imposed will be based on the extent of shoaling, hazardous conditions and severe weather in the area, and limited only to vessels that exceed certain size restrictions.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishment of a Regulated Navigation Area. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. Preliminary environmental analysis checklist supporting this determination and Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures and Waterways.
For the reasons discussed in the preamble, the interim rule amending 33 CFR part 165 published at 79 FR 75050 on December 17.2014 is adopted as a final rule, with changes, as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(1)
(2)
(3)
(4)
(c)
(2) Operation of vessels of certain characteristics in this RNA will be prohibited by the Captain of the Port (COTP) or designated representative in order to safeguard people and vessels from the hazards associated with shoaling and the Herbert C. Bonner Bridge from the potential catastrophic structural damage that could occur from a vessel bridge strike. The COTP or designated representative will evaluate local marine environmental conditions prior to issuing restrictions regarding vessel navigation. Factors that will be considered include, but are not limited to: hydrographic survey data, vessel characteristics such as displacement, tonnage, length and draft, current weather conditions including visibility, wind, sea state, and tidal currents.
(3) The Coast Guard will notify the public of restrictions via Local Notice to Mariners, Broadcast Notice to Mariners, electronic mail, U.S. Coast Guard HOMEPORT Web site, Marine Safety Information Bulletins and via other methods described in 33 CFR 165.7. Additionally, the Coast Guard will notify recognized commissions and/or committees appointed by the Dare
(4) In accordance with the general regulations, entry into, anchoring, or movement within the RNA, during periods of enforcement, is prohibited unless authorized by the Captain of the Port (COTP) or the COTP's on-scene designated representative. The “on-scene designated representative” of the COTP is any Coast Guard commissioned, warrant or petty officer who has been designated by the COTP to act on the COTP's behalf. The on-scene representative may be on a Coast Guard vessel; State agency vessel, or other designated craft; or may be on shore and will communicate with vessels via VHF-FM marine band radio or loudhailer. Members of the Coast Guard Auxiliary may be present to assist COTP representatives with notification of vessel operators regarding the contents of this regulation.
(5) Any deviation from paragraph (c)(4) of this section due to extreme circumstances must be authorized by the Coast Guard District Commander, the Captain of the Port (COTP) or the COTP's designated representative. Vessels granted permission to transit the RNA must do so in accordance with the directions provided by the COTP or COTP representative to that vessel. To request permission to transit the regulated navigation area, the COTP or COTP representative can be contacted at Coast Guard Sector North Carolina, telephone number (910) 343-3880, or on VHF-FM marine band radio channel 13 (165.65 MHz) or channel 16 (156.8 MHz). During periods of enforcement, all persons and vessels given permission to enter or transit within the RNA must comply with the instructions of the COTP or designated representative. Upon being hailed by an official patrol vessel by siren, radio, flashing-light, or other means, the operator of a vessel must proceed as directed.
(d)
(e)
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the State of Connecticut. The revision amends Regulations of Connecticut State Agencies (RCSA) section 22a-174-20 to update the requirements for controlling volatile organic compound (VOC) emissions from large aboveground storage tanks. The intended effect of this action is to approve these regulations into the Connecticut SIP. This action is being taken in accordance with the Clean Air Act (CAA).
This direct final rule will be effective January 4, 2016, unless EPA receives adverse comments by December 3, 2015. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments identified by Docket ID Number EPA-R01-OAR-2015-0546, by one of the following methods:
1.
2.
3.
4.
5.
In addition, copies of the state's submittal are available for public inspection during normal business hours, by appointment at the state environmental agency: The Bureau of Air Management, Department of Energy and Environmental Protection, State Office Building, 79 Elm Street, Hartford, CT 06106-1630.
David Mackintosh, Air Quality Planning Unit, U.S. Environmental Protection Agency, New England Regional Office, 5 Post Office Square—Suite 100, (Mail Code OEP05-02), Boston, MA 02109-3912, telephone 617-918-1584, facsimile 617-918-0584, email
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. The following outline is provided to aid in locating information in this preamble.
EPA is approving a SIP revision submitted by the State of Connecticut on April 8, 2014, concerning updates to requirements for controlling VOC emissions from large aboveground storage tanks. The Connecticut requirements, set out in RCSA section 22a-174-20, “Control of organic compound emissions,” subsections (a), (b), (c) and (x), were revised to be consistent with the Ozone Transport Commission (OTC) model rule for large aboveground VOC storage tanks.
EPA last approved RCSA section 22a-174-20, “Control of organic compound emissions,” subsections that addresses large aboveground storage tanks into the Connecticut SIP on October 18, 1991 (56 FR 52205).
On June 3, 2010, Connecticut signed an OTC Memorandum of Understanding (MOU) committing the state to the evaluation and adoption of an OTC model rule designed to reduce VOC emissions from large aboveground storage tanks.
On March 5, 2014, Connecticut revised RCSA section 22a-174-20 subsections (a), (b), (c) and (x) to update VOC emission control requirements from large aboveground storage tanks. On April 8, 2014, the Connecticut Department of Energy and Environmental Protection (DEEP), submitted the newly adopted subsections to EPA as a SIP revision.
Connecticut's April 8, 2014 SIP submittal includes revised RCSA section 22a-174-20, “Control of organic compound emissions.” Specifically, the following subsections of Connecticut's existing regulation were revised:
1. Subsection (a), “Storage of volatile organic compounds and restrictions for the Reid vapor pressure of gasoline;”
2. subsection (b), “Loading of gasoline and other volatile organic compounds,” subdivisions (1) through (4) and (17);
3. subsection (c), “Volatile organic compound and water separation;” and
4. subsection (x), “Control of Volatile Organic Compound Leaks from Synthetic Organic Chemical & Polymer Manufacturing Equipment,” subdivision (12).
RCSA section 22a-174-20, “Control of organic compound emissions,” subsections (a), (b), (c) and (x) have been revised to incorporate the OTC model rules for large aboveground VOC storage tanks. Specifically, Connecticut adopted the following substantive changes:
1. Remove the option to use an un-domed floating roof tank to store VOCs, clarify inspection requirements, and add requirements for roof landing events, degassing, and cleaning operations in subsection (a);
2. Revise the storage and transfer of VOCs to include a lower vapor pressure floor for determining applicability and the vapor pressure is simplified by basing it on absolute vapor pressure rather than actual vapor pressure in subsections (a) and (b);
3. Add a requirement for the timely repair of leaks throughout the VOC storage and transfer facility as subdivision (b)(17);
4. Revise the floating roof requirements for volatile organic compound and water separators to be consistent with the floating roof requirements for storage tanks in subsection (c) and;
5. Revise the tank control provisions for synthetic organic chemical and polymer manufacturing equipment to require retesting within two days of repairs in subdivision (x)(12).
Connecticut's revised RCSA section 22a-174-20 includes additional and more stringent VOC emission controls than the previous SIP-approved version of the rule, and are generally consistent with the recommendations made within the OTC's model rule. Thus, the revised RCSA section 22a-174-20 satisfies the anti-back sliding requirements in Section 110(l) of the CAA and we are approving Connecticut's revised rule into the Connecticut SIP.
EPA is approving and incorporating into the Connecticut SIP the following revisions of RCSA section 22a-174-20, “Control of organic compound emissions,” to update the control of emissions from large aboveground storage tanks:
(1) the amendment of subsection (a);
(2) the withdrawal of subdivision (b)(1);
(3) the amendment of subdivisions (b)(2), (b)(3) and (b)(4);
(4) the addition of subdivision (b)(17);
(5) the amendment of subsection (c); and
(6) the amendment of subdivision (x)(12).
The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this
If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on January 4, 2016 and no further action will be taken on the proposed rule.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Regulations of Connecticut State Agencies described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under 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).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 4, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.
Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Air pollution control, Incorporation by reference, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(110) Revisions to the State Implementation Plan submitted by the Connecticut Department of Energy and Environmental Protection on April 8, 2014.
(i) Incorporation by reference.
(A) Regulations of Connecticut State Agencies, revisions to Section 22a-174-20(a), as published in the Connecticut Law Journal on May 6, 2014, effective March 7, 2014:
(
(
(
(
(B) Regulations of Connecticut State Agencies, Subsection (b)(1) of Section 22a-174-20 is removed without replacement, as published in the Connecticut Law Journal on May 6, 2014, effective March 7, 2014.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve revisions to the North Carolina State Implementation Plan (SIP), submitted by the North Carolina Department of Environment and Natural Resources (DENR), Division of Air Quality (DAQ), on February 5, 2013, and supplemented on July 27, 2015. The submissions pertain to conflict of interest requirements of the Clean Air Act (CAA or Act) and were submitted to satisfy the infrastructure SIP sub-element related to the state board for the 2010 Nitrogen Dioxide (NO
This rule will be effective December 3, 2015.
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2015-0440. All documents in the docket are listed on the
Sean Lakeman, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Lakeman can be reached by telephone at (404) 562-9043 or via electronic mail at
SIPs meeting the requirements of sections 110(a)(1) and (2) of the CAA are to be submitted by states within three years after promulgation of a new or revised NAAQS. Sections 110(a)(1) and (2) require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS.
EPA is taking final action to approve North Carolina's February 5, 2013, and July 27, 2015, submissions as: (1) Satisfying the requirements of section 128 of the CAA; and (2) the infrastructure SIP sub-element for section 110(a)(2)(E)(ii) related to the state board requirements for the 2010 NO
EPA proposed to approve the February 5, 2013, and July 27, 2015, submissions in a notice of proposed rulemaking (NPR) published on August 24, 2015.
As described above, EPA is taking final action to approve North Carolina's February 5, 2013, and July 27, 2015, submissions concerning the conflict of interest requirements of CAA section 128(a)(2) for inclusion into the North Carolina SIP.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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 CAA; 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 Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 4, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate Matter, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42. U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
Under the Federal Clean Air Act (CAA or Act) the Environmental Protection Agency (EPA) is approving revisions to the Oklahoma State Implementation Plan (SIP) submitted by the State of Oklahoma designee. The revisions are administrative in nature and modify redundant or erroneous text within the SIP. The revisions also incorporate new definitions and the current national ambient air quality standards (NAAQS) for four criteria pollutants; delete a subchapter that addresses motor vehicle pollution control devices; and add requirements for certain incinerators.
This rule is effective on January 4, 2016 without further notice, unless EPA receives relevant adverse comment
Submit your comments, identified by Docket ID No. EPA-R06-OAR-2011-0034, by one of the following methods:
•
• Email: Carrie Paige at
• Mail: Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.
Carrie Paige, (214) 665-6521 or
Throughout this document, “we,” “us,” and “our” means the EPA.
Section 110 of the Act requires states to develop air pollution regulations and control strategies to ensure that air quality meets the EPA's NAAQS. These ambient standards are established under section 109 of the Act and they currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. The state's air regulations are contained in its SIP, which is basically a clean air plan. Each state is responsible for developing SIPs to demonstrate how the NAAQS will be achieved, maintained, and enforced. The SIP must be submitted to EPA for approval and any changes a state makes to the approved SIP also must be submitted to the EPA for approval.
The Secretary of the Oklahoma Department of Environmental Quality (ODEQ) submitted revisions for approval by EPA on July 16th and December 27th of 2010, February 6, 2012, and January 18, 2013. The revisions address air pollution regulations and control strategies codified in the Oklahoma Administrative Code (OAC) under Title 252 (DEQ), Chapter 100 (Air Pollution Control). Three of the four submittals include revisions that address air permitting and incorporate by reference applicable provisions of Title 40 of the Code of Federal Regulations (denoted 40 CFR). These revisions can be evaluated independently (
The substantive revisions in the four submittals before us include incorporation of new definitions; updating the SIP with the current NAAQS for lead, ozone, nitrogen dioxide (NO
The criteria used to evaluate these SIP revisions are found primarily in section 110 of the CAA. Section 110(l) requires that a SIP revision submitted to EPA be adopted after reasonable notice and public hearing and also requires that EPA not approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. Our TSD contains a detailed evaluation of the revisions, describing how each revision meets the requirements for SIP approval.
A synopsis of the submitted revisions and our evaluation follows.
The ODEQ removes subchapter 15 in its entirety. Subchapter 15 is duplicative of section 203 of the CAA. Subchapter 15 was not ever required to be in the Oklahoma SIP and did not supersede or otherwise modify requirements for pollution control devices on motor vehicles.
Part 1 clarifies that incinerators used to generate useful heat energy are subject to all applicable requirements of subchapter 17. Part 3 adds specificity by identifying the applicable sources; clarifying existing definitions and requirements; expanding incinerator design requirements to include operation requirements; and adding definitions for “Particulate matter” and “Secondary combustion chamber.” Other revisions to parts 1 and 3 are non-substantive and delete redundant text.
A new part 4 addresses biomedical waste incinerators. The new terms and definitions, design and operation, and emission limits are consistent with EPA's Standards of Performance for New Stationary Sources: Hospital/Medical/Infectious Waste Incinerators (see 74 FR 51368, October 6, 2009 and 40 CFR 60.51c), and EPA's Standards Of Performance for Incinerators at 40 CFR 60, Subpart E.
The ODEQ removes appendix B, renames appendix A, and moves the appendix B formulas into A. A typographical error was corrected. There were no changes to the allowable emission rates.
The ODEQ submits new definitions for “Condensable particulate matter,” “Filterable particulate matter,” and “Total particulate matter.” They are consistent with the definitions addressing particulate matter at 40 CFR 51.100. Other revisions to this subchapter clarify that the particulate matter (PM) emission rates in this subchapter refer to condensable and filterable PM.
The submitted revisions also address appendices C, D and G within subchapter 19. The revisions are confined to retitling the appendices, such that each now includes “particulate matter” in its title.
The submitted revisions include a non-substantive edit to style and the correction of an error in a citation at 100-25-3(b)(3). These revisions to subchapter 25 provide consistency and accuracy.
The ODEQ revised appendices E and F for the 2008 NAAQS for ozone
The submitted revisions addressed in today's rulemaking provide consistency with the NAAQS and EPA's rules regarding incinerators, and provide clarity and accuracy, thus improving the Oklahoma SIP. These revisions will not interfere with any applicable requirement regarding attainment or any other applicable requirement of the CAA and are consistent with section 110(l) of the Act.
The EPA is approving all or parts of four Oklahoma SIP submittals. Specifically, we are approving the portions of the July 16, 2010 submittal that revise appendices C, D, E, F and G and subchapters 19 and 25. We are also approving in whole the December 27, 2010 submittal that revises subchapter 15 and appendices E and F. We are also approving the portion of the February 6, 2012 submittal that revises appendix E. We are also approving the portion of the January 18, 2013 submittal that revises subchapter 17 and appendices A and B. The EPA is approving these SIP revisions in accordance with the requirements of the CAA.
The EPA is publishing this rule without prior proposal because we view this as a non-controversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
In this rule, we are finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.4, we are finalizing the incorporation by reference of the revisions to the Oklahoma regulations as described in the preceding Final Action section. We have made, and will continue to make, these documents generally available electronically through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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
• 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 CAA; 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 Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 4, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
Environmental Protection Agency (EPA) is approving in part and disapproving in part State Implementation Plan (SIP) revisions submitted by the State of Nevada pursuant to the requirements of the Clean Air Act (CAA) for the 2008 ozone national ambient air quality standards (NAAQS), the 2010 nitrogen dioxide (NO
This final rule is effective on December 3, 2015.
EPA has established a docket for this action, identified by Docket ID Number EPA-R09-OAR-2014-0812. The index to the docket for this action is available electronically at
Tom Kelly, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 972-3856,
Throughout this document, the terms “we,” “us,” and “our” refer to EPA.
Section 110(a)(1) of the CAA requires each state to submit to EPA, within three years (or such shorter period as the Administrator may prescribe) after the promulgation of a primary or secondary NAAQS or any revision thereof, a SIP that provides for the “implementation, maintenance, and enforcement” of such NAAQS. EPA refers to these specific submissions as “infrastructure” SIPs because they are intended to address basic structural SIP requirements for new or revised NAAQS.
EPA issued a revised NAAQS for ozone on March 28, 2010, for NO
• The Nevada Division of Environmental Protection Portion of the Nevada State Implementation Plan for the 2008 Ozone NAAQS: Demonstration of Adequacy April 10, 2013;
• State Implementation Plan Revision to Meet the Ozone Infrastructure SIP Requirements of the Clean Air Act § 110(a)(2), Clark County, Nevada, February, 2013;
• The Washoe County Portion of the Nevada State Implementation Plan for the 2008 Ozone NAAQS: Demonstration of Adequacy, February 28, 2013.
• NDEP letter to EPA, dated May 9, 2013 and Washoe County letter, dated April 26, 2013, containing the Approved Minutes of the February 28, 2013 public hearing and the Certificate of Adoption;
• The Nevada Division of Environmental Protection Portion of the Nevada State Implementation Plan for the 2010 Nitrogen Dioxide Primary NAAQS: Demonstration of Adequacy and appendices, January 18, 2013;
• State Implementation Plan Revision to Meet the Nitrogen Dioxide Infrastructure SIP Requirements of the Clean Air Act § 110(a)(2), and attachments Clark County, Nevada, December, 2012;
• The Washoe County Portion of the Nevada State Implementation Plan to Meet the Nitrogen Dioxide Primary NAAQS; Final Submittal, March 15, 2013.
• The Nevada Division of Environmental Protection Portion of the Nevada State Implementation Plan for the 2010 Sulfur Dioxide Primary NAAQS, and appendices, June 3, 2013;
• State Implementation Plan Revision to Meet the Sulfur Dioxide Infrastructure SIP Requirements of the Clean Air Act § 110(a)(2), and attachments Clark County, Nevada, May, 2013;
• The Washoe County Portion of the Nevada State Implementation Plan to Meet the Sulfur Dioxide Infrastructure SIP Requirements of Clean Air Act § 110(a)(2), and attachments, March 28, 2013.
We refer to these submittals collectively as “Nevada's Infrastructure Submittals.”
On May 20, 2015 (80 FR 28893), EPA proposed to approve in part, and disapprove in part, these SIP revisions addressing the infrastructure requirements of CAA section 110(a)(1) and (2) for the 2008 ozone, the 2010 NO
Nevada's submittals also requested that EPA reclassify the Nevada Intrastate Air Quality Control Region from priority IA to priority III for SO
The rationale supporting EPA's actions is explained in our May 20, 2015 Notice of Proposed Rulemaking (proposed rule) and the associated technical support documents (TSDs) and will not be restated here.
The public comment period on EPA's proposed rule opened on May 20, 2015, the date of its publication in the
The CAA requires each state to adopt and submit a plan which provides for implementation, maintenance, and enforcement of the NAAQS.
EPA's authority to promulgate a FIP derives from EPA's determination that a state has failed to submit a complete, required SIP submission or from EPA's disapproval of a state submission of a SIP or SIP revision.
In 1974, EPA disapproved each state's SIP with respect to PSD and promulgated a FIP as a substitute for the SIP deficiency (“PSD FIP”).
Since then, EPA has approved the PSD SIP for the sources and geographic area that lie within the jurisdiction of Clark County Department of Air Quality (DAQ), and has delegated responsibility for conducting PSD review, as per the PSD FIP, to NDEP and Washoe County. Notwithstanding the delegation, however, the Nevada SIP remains deficient with respect to PSD for the geographic areas and stationary sources that lie within NDEP's and Washoe County's jurisdictions. As such, EPA's disapproval of the infrastructure SIP submittals for those elements that require states to have a SIP that includes a PSD permit program, including CAA sections 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J), is appropriate because EPA disapproved the state's submitted plan as not adequately addressing PSD program requirements. To conclude otherwise would be inconsistent with the long-standing and current disapproval of the SIP for PSD for the applicable areas, with the statutory foundation upon which the PSD FIP is authorized, and with the obligation under section 110(a) for each state to
The commenter believed that the main objective of the infrastructure SIP process “is to ensure that all areas of the country meet the NAAQS,” and that nonattainment areas are addressed through nonattainment SIPs. The commenter maintained the NAAQS are the foundation for specific emission limitations for most large stationary sources, such as coal-fired power plants. The commenter stated its belief that, pursuant to section 107(a), the states have primary responsibility to maintain air quality through the controls and programs contained in the state's infrastructure SIPs as required by section 110(a)(2). The commenter also argued that, on its face, the CAA requires infrastructure SIPs “to be adequate to prevent exceedances of the NAAQS,” as provided in section 110(a)(1), which requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS, and the language in section 110(a)(2)(A), which requires SIPs to include enforceable emissions limitations necessary to meet the requirements of the CAA and which the commenter claimed also should include the maintenance plan requirement. The commenter maintained the CAA definition of emission limit, when combined with the provisions stated above, requires “enforceable emission limits on source emissions sufficient to ensure maintenance of the NAAQS.”
EPA interprets infrastructure SIPs as more general planning SIPs, consistent with the CAA as understood in light of its history and structure. When Congress enacted the CAA in 1970, it did not include provisions requiring states and the EPA to label areas as attainment or nonattainment. Rather, states were required to include all areas of the state in “air quality control regions” (AQCRs) and section 110 set forth the core substantive planning provisions for these AQCRs. At that time, Congress anticipated that states would be able to address air pollution quickly pursuant to the very general planning provisions in section 110 and could bring all areas into compliance with a new NAAQS within five years. Section 110(a)(2)(A)(i) specified that the section 110 plan provide for “attainment” of the NAAQS and section 110(a)(2)(B) specified that the plan must include “emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance [of the NAAQS].”
In 1977, Congress recognized that the existing structure was not sufficient and many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and EPA to identify whether areas of a state were violating the NAAQS (
Thus, EPA asserts that section 110 of the CAA is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of that structure and the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific planning requirements of the CAA, EPA reasonably interprets the requirement in section 110(a)(2)(A) of the CAA that the plan provide for “implementation, maintenance and enforcement” to mean that the SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS. EPA has interpreted the requirement for emission limitations in section 110 to mean that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. Finally, as EPA stated in the Infrastructure SIP Guidance which specifically provides guidance to states in addressing the 2010 SO
EPA addressed the adequacy of Nevada's infrastructure SIP for section 110(a)(2)(A) purposes in the TSD accompanying the May 20, 2014 Notice of Proposed Rulemaking and explained that the SIP includes enforceable emission limitations and other control measures “necessary or appropriate to meet the requirements of this chapter.”
The guidance states, “two elements that could not be governed by the 3-year submission deadline of section 110(a)(1) . . . the following elements are considered by the EPA to be outside the scope of infrastructure SIP actions: (1) Section 110(a)(2)(C) to the extent that it refers to permit programs (known as “nonattainment new source review”) under part D; and (2) section 110(a)(2)(I) in its entirety, which addresses SIP revisions for nonattainment areas. Both these elements pertain to SIP revisions that collectively are referred to as a nonattainment SIP or an attainment plan, which would be due by the dates statutorily prescribed under subparts 2 through 5 under part D, extending as far as 10 years following area designations for some elements. Because the CAA directs states to submit these plan elements on a separate schedule, the EPA does not believe it is necessary for states to include these elements in the infrastructure SIP submission due 3 years after adoption or revision of a NAAQS.”
As discussed in detail in the TSD and NPR, EPA finds the Nevada SIP meets the appropriate and relevant structural requirements of section 110(a)(2) of the CAA that will aid in attaining and/or maintaining the NAAQS and that the State demonstrated that it has the necessary tools to implement and enforce a NAAQS.
In
The decision in
At issue in
In
Two of the cases Sierra Club/Earthjustice cites,
In
Finally, in
Although EPA was explicit that it was not establishing requirements interpreting the provisions of new “Part D” of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (“Control strategy: SO
As stated in response to
EPA believes that the proper inquiry is whether Nevada, including Clark County, has met the basic structural SIP requirements appropriate at the point in time EPA is acting upon the infrastructure submittal. Emissions limitations and other control measures needed to attain the NAAQS in areas designated nonattainment for that NAAQS are due on a different schedule from the section 110 infrastructure elements. A state, like Nevada, may reference pre-existing SIP emission limits or other rules contained in part D plans for previous NAAQS in an infrastructure SIP submission. For example, NDEP and Clark County submitted a list of existing emission reduction measures in the SIP that control emissions of ozone, which are included in the discussion of Element A of the TSD supporting the NPRM. These provisions have the ability to reduce ozone overall. We mention both NDEP and Clark County because they both regulate facilities within Clark County. As mentioned in the TSD supporting the NPRM, NDEP has the sole authority to regulate facilities that generate energy from steam boilers burning fossil fuels. Fuel combustion is the second largest source of NO
While NO
EPA believes it is not appropriate to bypass the attainment planning process by imposing separate attainment planning process requirements outside the attainment planning process and into the infrastructure SIP process. Such
EPA does not agree with the commenter's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits adequate to provide for timely attainment and maintenance of the standard. As explained previously in response to
Our response to Sierra Club's petition explained, “emissions of NO
For Clark County's remaining sources of NO
Clark County has joined EPA's voluntary Ozone Advance Program, a collaborative effort between EPA, states, tribes, and local governments. It encourages proactive efforts to improve air quality that could better position areas to stay in attainment. The docket for this rulemaking includes Clark County's 2014 and 2015 submittals for the program.
The commenter is correct in stating that Clark County's design value appears to have increased in the years following the county's designation as an attainment area (which had been based on 2009-2011 data forming the 2011 design value). However, as we have noted, NO
Under CAA section 110(k)(3), and based on the evaluation and rationale presented in the proposed rule, the related TSDs, and this final rule, EPA is approving in part and disapproving in part Nevada's Infrastructure Submittal for the 2008 Ozone, 2010 NO
EPA is approving Nevada's Infrastructure SIP for the 2008 Ozone, 2010 NO
• 110(a)(2)(A): Emission limits and other control measures.
• 110(a)(2)(B): Ambient air quality monitoring/data system.
• 110(a)(2)(C) (in part): Program for enforcement of control measures and regulation of new stationary sources (full approval for Clark County).
• 110(a)(2)(D) (in part, see below): Interstate Pollution Transport.
• 110(a)(2)(D)(i)(I) (in part)—significant contribution to nonattainment, or prongs 1 and 2 (full approval of NDEP, Clark County and Washoe County for the NO
• 110(a)(2)(D)(i)(II) (in part)—interstate transport—prevention of significant deterioration, or prong 3 (full approval for Clark County).
• 110(a)(2)(D)(i)(II) (full approval)—visibility transport, or prong 4.
• 110(a)(2)(D)(ii) (in part)—interstate pollution abatement and international air pollution (full approval for Clark County).
• 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies.
• 110(a)(2)(F): Stationary source monitoring and reporting.
• 110(a)(2)(G): Emergency episodes.
• 110(a)(2)(H): SIP revisions.
• 110(a)(2)(J) (in part): Consultation with government officials, public notification, and prevention of significant deterioration (PSD) and visibility protection (full approval for Clark County).
• 110(a)(2)(K): Air quality modeling and submission of modeling data.
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/participation by affected local entities.
EPA is disapproving Nevada's Infrastructure Submittal with respect to the following infrastructure SIP requirements:
• 110(a)(2)(C) (in part): Program for enforcement of control measures and regulation of new and modified stationary sources (disapproved for all NAAQS addressed by this rule and covered by the NDEP and Washoe County PSD permitting programs).
• 110(a)(2)(D) (in part, see below): Interstate Pollution Transport.
• 110(a)(2)(D)(i)(II) (in part): interstate transport—prevention of significant deterioration, or prong 3 (disapproval for all NAAQS addressed by this rule and covered by the NDEP and Washoe County PSD permitting programs).
• 110(a)(2)(D)(ii) (in part)—interstate pollution abatement and international air pollution (disapproved for all NAAQS addressed by this rule and covered by the NDEP and Washoe County PSD permitting programs).
• 110(a)(2)(J) (in part): Consultation with government officials, public notification, PSD, and visibility protection (disapproval for all NAAQS addressed by this rule and covered by the NDEP and Washoe County PSD permitting programs).
As explained in our proposed rule, TSD, and section II of this final rule, we are disapproving Nevada's Infrastructure Submittal for the NDEP and Washoe County portions of the SIP with respect to the PSD-related requirements of CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J) because the Nevada SIP does not fully satisfy the statutory and regulatory requirements for PSD permit programs under part C, title I of the Act. Both NDEP and Washoe County implement the Federal PSD program in 40 CFR 52.21 for all regulated new source review (NSR) pollutants, pursuant to delegation agreements with EPA.
EPA takes disapproval of a state plan seriously. We believe that it is preferable, and preferred in the provisions of the Clean Air Act, that these requirements be implemented through state plans. A state plan need not contain exactly the same provisions that EPA might require, but EPA must be able to find that the state plan is consistent with the requirements of the Act in accordance with its obligations under section 110(k). Further, EPA's oversight role requires that it assure consistent implementation of Clean Air Act requirements by states across the country, even while acknowledging that individual decisions from source to source or state to state may not have identical outcomes. EPA believes these disapprovals are the only path that is consistent with the Act at this time.
Under section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of part D of title I of the CAA (CAA sections 171-193) or is required in response to a finding of substantial inadequacy as described in CAA section 110(k)(5) (SIP Call) starts a sanctions clock. Nevada's Infrastructure SIP Submittals were not submitted to meet either of these requirements. Therefore, our partial disapproval of Nevada's Infrastructure Submittals does not trigger mandatory sanctions under CAA section 179.
In addition, CAA section 110(c)(1) provides that EPA must promulgate a FIP within two years after finding that a state has failed to make a required submission or disapproving a SIP submission in whole or in part, unless EPA approves a SIP revision correcting the deficiencies within that two-year period. As discussed in section III.B of this final rule and in our TSD, we are finalizing several partial disapprovals. These disapprovals do not result in new FIP obligations, because EPA has already promulgated FIPs to address the identified deficiencies.
EPA is finalizing the other regulatory actions discussed in the proposed rule: Defining the term Nevada Intrastate Air Quality Control Region; reclassifying the Nevada Intrastate and Las Vegas Intrastate Air Quality Control Regions from priority IA to priority III for emergency episodes; removing historic language from the Nevada SIP, which refers to a facility no longer in existence.
This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this rule on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. This rule does not impose any requirements or create impacts on small entities. This partial SIP approval and partial SIP disapproval under CAA section 110 will not in-and-of itself create any new requirements but simply approves certain State requirements, and disapproves certain other State requirements, for inclusion into the SIP. Accordingly, it affords no opportunity for EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the rule. Therefore, this action will not have a significant economic impact on a substantial number of small entities.
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. EPA has determined that the partial approval and partial disapproval action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This action approves certain pre-existing requirements, and disapproves certain other pre-existing requirements, under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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 federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves certain State requirements, and disapproves certain other State requirements, for inclusion into the SIP and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, Executive Order 13132 does not apply to this action.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule 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. In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this rule.
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). This partial approval and partial disapproval under CAA section 110 will not in-and-of itself create any new regulations but simply approves certain State requirements, and disapproves certain other State requirements, for inclusion into the SIP.
This rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
EPA believes that this action is not subject to requirements of Section 12(d) of NTTAA because application of those requirements would be inconsistent with the Clean Air Act.
Executive Order (EO) 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA lacks the discretionary authority to address environmental justice in this rulemaking.
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
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Nitrogen dioxide, Sulfur dioxide, Reporting and recordkeeping requirements.
Environmental protection, air pollution control, incorporation by reference, Nevada Intrastate Air Quality Control Region.
Therefore, 40 CFR Chapter I is amended as follows:
42 U.S.C. 7401
(e) * * *
The Nevada plan is evaluated on the basis of the following classifications:
(h)
(i)
(j)
42 U.S.C. 7401
The Nevada Intrastate Air Quality Control Region consists of the territorial area encompassed by the boundaries of the following jurisdictions or described area (including the territorial area of all municipalities (as defined in section 302(f) of the Clean Air Act, 42 U.S.C. 1857h(f)) geographically located within the outermost boundaries of the area so delimited):
In the State of Nevada: Churchill County, Elko County, Esmeralda County, Eureka County, Humboldt County, Lander County, Lincoln County, Mineral County, Nye County, Pershing County, and White Pine County.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is implementing a 2,000 lb possession limit for Atlantic herring in or from management Area 1A, based on the projection that 92 percent of the 2015 annual seasonal catch limit for that area will have been harvested by the effective date. Federally permitted vessels may not fish for, possess, transfer, receive, land, or sell more than 2,000 lb (907.2 kg) of Atlantic herring in or from Area 1A for the remainder of the fishing year, and federally permitted dealers may not purchase more than 2,000 lb (907.2 kg) of herring from federally permitted vessels for the duration of this action. This action is necessary to comply with the regulations implementing the Atlantic Herring Fishery Management Plan and is intended to prevent over harvest in Area 1A.
Effective 1200 hr local time, November 2, 2015, through December 31, 2015.
Shannah Jaburek, Fishery Management Specialist, (978) 282-8456.
Regulations governing the Atlantic herring fishery can be found at 50 CFR part 648, including requirements for setting annual catch allocations. NMFS set the 2015 Area 1A sub-annual catch limit (ACL) at 30,585 mt, based on an initial 2015 sub-ACL allocation of 31,200 mt, minus a deduction of 936 mt for research set-aside catch, plus an increase of 321 mt to account for unharvested 2013 catch. NMFS established these values in the 2013 through 2015 specifications (78 FR 61828, October 1, 2013) and a final rule implementing sub-ACL adjustments for 2015 (80 FR 7808, February 12, 2015). For management Area 1A, NMFS restricts herring catch to the seasonal period from June 1 through December 31. NMFS prohibits vessels from catching herring during the seasonal period from January 1 through May 31.
The Administrator, Greater Atlantic Region, NMFS (Regional Administrator), monitors the herring fishery catch in each of the management areas based on dealer reports, state data, and other available information. The regulations at § 648.201 require that when Regional Administrator projects that herring catch will reach 92 percent of the sub-ACL allocated in any of the four management areas designated in the Atlantic herring Fishery Management Plan (FMP), NMFS must prohibit, through notification in the
The Regional Administrator has determined, based on dealer reports, state data, and other available information, that the herring fleet will have caught 92 percent of the total herring sub-ACL allocated to Area 1A by November 2, 2015. Therefore, effective 1200 hr local time, November 2, 2015, federally permitted vessels may not fish for, catch, possess, transfer, land, or sell more than 2,000 lb (907.2 kg) of herring per trip or calendar day, in or from Area 1A through December 31, 2015, except that vessels that have entered port before 1200 hr on November 2, 2015, may land and sell more than 2,000 lb (907.2 kg) of herring from Area 1A from that trip. In addition, due to state landing restrictions, all herring vessels must land in accordance with state regulations. A vessel may transit through Area 1A with more than 2,000 lb (907.2 kg) of herring on board, provided all herring was caught outside of Area 1A and all fishing gear is stowed and not available for immediate use as defined by § 648.2. Effective 1200 hr on November 2, 2015, federally permitted dealers may not receive herring from federally permitted herring vessels that harvest more than 2,000 lb (907.2 kg) of herring from Area 1A through 2400 hr local time, December 31, 2015, unless it is from a trip landed by a vessel that entered port before 1200 hr on November 2, 2015, and that catch is landed in accordance with state regulations.
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
NMFS finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest and impracticable. This action severely restricts the catch of herring in Area 1A for the remainder of the fishing year. Data indicating the herring fleet will have landed at least 92 percent of the 2015 sub-ACL allocated to Area 1A have only recently become available. Once these data become available, NMFS is required by Federal regulation to implement a 2,000-lb (907.2-kg) possession limit for Area 1A through December 31, 2015. The regulations at § 648.201(a)(1)(i) require such action to ensure that herring vessels do not exceed the 2015 sub-ACL allocated to Area 1A. If implementation of this closure is delayed to solicit prior public comment, the sub-ACL for Area 1A for this fishing year will likely be exceeded, thereby undermining the conservation objectives of the FMP. If sub-ACLs are exceeded, the excess must also be deducted from a future sub-ACL and would reduce future fishing opportunities. NMFS further finds, pursuant to 5 U.S.C 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons stated above.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; inseason adjustments to biennial groundfish management measures.
This final rule announces inseason changes to management measures in the Pacific Coast groundfish fisheries. This action, which is authorized by the Pacific Coast
This final rule is effective October 29, 2015.
Gretchen Hanshew, phone: 206-526-6147, fax: 206-526-6736, or email:
This rule is accessible via the Internet at the Office of the Federal Register Web site at
As part of biennial harvest specifications and management measures, annual catch limits (ACLs) are set for non-whiting groundfish species, deductions are made “off-the-top” from the ACL for various sources of mortality (including non-groundfish fisheries that catch groundfish incidentally, also called incidental open access fisheries) and the remainder, the fishery harvest guideline, is allocated amongst the various groundfish fisheries. The limited availability of overfished species that can be taken as incidental catch in the Pacific whiting fisheries, particularly darkblotched rockfish, Pacific ocean perch, and canary rockfish, led NMFS to implement sector-specific allocations for these species to the Pacific whiting fisheries. If the sector-specific allocation for a non-whiting species is reached, NMFS may close one or more of the at-sea sectors automatically, per regulations at § 660.60(d).
The Council, in coordination with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, recommended changes to current groundfish management measures at its September 9-16, 2015 meeting. The Council recommended taking a portion of the darkblotched rockfish initially deducted from the ACL that would likely go unharvested in 2015 and making it available to the mothership (MS) and catcher/processor (C/P) sectors of the at-sea Pacific whiting fishery, with no more than 5 metric tons (mt) to either sector.
At the September meeting, the MS sector requested an increase to their darkblotched rockfish set-aside to accommodate higher than anticipated bycatch rates in 2015 to prevent closure of the MS sector prior to harvesting their full allocation of Pacific whiting, as occurred temporarily in 2014 before darkblotched rockfish was distributed to them (79 FR 69060, November 20, 2014). At the start of 2015, the C/P and MS sectors of the Pacific whiting fishery were allocated 9.2 mt and 6.5 mt of darkblotched rockfish, respectively, per regulations at § 660.55(c)(1)(i)(A).
According to the best available fishery information, bycatch rates of darkblotched rockfish in the MS sector have been more than double the rate seen in 2014 (Agenda Item H.9.b, Public Comment, September 2015). Additionally, recent 2015 (late-summer and early autumn) bycatch rates of darkblotched rockfish in the shoreside Pacific whiting sector have been 3.5 times higher than this time last year. This raised concerns that when the MS fleet returns in October from fishing in Alaska, bycatch rates of darkblotched rockfish would be even higher than they were in summer 2015. At the September meeting, best available information regarding bycatch rates of darkblotched rockfish in the C/P sector indicated that, if those rates continued, the Pacific whiting allocation could be achieved prior to harvesting their 2015 darkblotched rockfish set-aside. However, the Council considered the possibility of sudden, unexpected large bycatch events that occasionally occur in the MS and C/P sectors, and how one or more of those events could dramatically change the bycatch rates of darkblotched rockfish, jeopardizing continuation of their seasons and achievement of their 2015 Pacific whiting allocations.
To maintain 2015 harvest opportunities for the MS and C/P sectors of the Pacific whiting fishery, the Council considered moving darkblotched rockfish quota that would otherwise go unharvested in the incidental open access fishery to the MS and C/P sectors. At the start of 2015 a total of 20.8 mt of darkblotched rockfish was deducted from the ACL, including 18.4 mt of to account for mortality in the incidental open access fishery.
At its September 2015 meeting, the Council considered best available information regarding harvest levels of darkblotched rockfish in the incidental open access fishery to evaluate whether all 18.4 mt would be harvested in 2015, and if any of those fish that would go unharvested and could be transferred to the MS and C/P sectors inseason to allow for continued fishing opportunities in those sectors. Harvest of darkblotched rockfish in the incidental open access fisheries in 2011-2013 was below 6 mt per year, but the best estimate of mortality in 2014 increased to 24 mt. It was hypothesized that the much higher bycatch levels in 2014 may be due to a large 2013 darkblotched rockfish year class being caught in the pink shrimp trawl fishery. There was also anecdotal evidence that the use of light emitting diode (LED) lights had become widespread in the 2015 pink shrimp fishery following a 2014 research study, which could result in a drastic reduction in bycatch of juvenile darkblotched rockfish when LED lights were affixed to the shrimp trawl gear.
Therefore, the Council recommended redistributing 8 mt of darkblotched rockfish, from the “off-the-top” deductions that were made at the start of the 2015-2016 biennium, to the MS and C/P sectors, with no more than 5 mt to either sector, to accommodate potential bycatch of darkblotched rockfish as each sector prosecutes the remainder of their 2015 Pacific whiting allocations.
The Council's recommendation at the September meeting asked NMFS to monitor ongoing MS and C/P fisheries and redistribute darkblotched rockfish based on needs of the at-sea whiting fisheries in an effort prevent closure of those fisheries prior to achieving their respective Pacific whiting allocations. Therefore, this inseason action incorporates updated information on ongoing MS and C/P sector fisheries and on the best available information on how much darkblotched rockfish is anticipated to go unharvested from the off-the-top deductions. According to the best information available on September 29, 2015, observed darkblotched rockfish bycatch rates in the pink shrimp fishery in 2015 were much lower than in 2014, and similar to levels seen in 2011-2013. NMFS projects that the incidental open access fisheries, including the pink shrimp trawl fishery, will harvest 5.7 mt through the end of the year out of the 18.4 mt that was anticipated when the off-the-top deductions were made.
The off-the-top deduction is a sum of anticipated impacts from scientific
Shortly after the conclusion of the September Council meeting, a bycatch event of darkblotched rockfish occurred in the C/P sectors, increasing the likelihood of early closure of that C/P sector if additional darkblotched rockfish were unavailable. Based on this information, there is need for additional darkblotched rockfish in both the MS and C/P sectors.
Based on the information presented at the September meeting, the Council's recommendation, the best available information on the available amount darkblotched rockfish, and the best available information on bycatch rates in the MS and C/P fisheries, this rule redistributes 7 mt of darkblotched rockfish that is anticipated to go unharvested in the incidental open access fisheries through the end of 2015 to the MS and C/P sectors in equal amounts, 3.5 mt to each sector. To buffer against uncertainty in the estimates, 0.4 mt of darkblotched rockfish will remain in the “off-the-top” deductions. 7 mt of darkblotched rockfish will be distributed equally between the MS and C/P sectors because both fisheries show higher than anticipated bycatch rates this year. If those higher rates continue and no additional darkblotched rockfish is distributed, both sectors are projected to attain their current darkblotched rockfish set-asides of 9.2 mt and 6.5 mt, respectively, before their Pacific whiting allocations are fully harvested.
This rule partially approves the Council's recommendation to provide additional darkblotched that would otherwise go unharvested in 2015. Increasing the darkblotched rockfish set-asides to 10 mt for the MS sector and 12.7 mt for the C/P sector reduces the risk of closure of the MS and C/P sectors prior to full attainment of the Pacific whiting allocation if higher than anticipated bycatch rates of darkblotched rockfish continue late in 2015. Mortality of darkblotched rockfish in the 2015 incidental open access fishery has been lower than anticipated and the projected mortality indicates it will be within the remaining off-the-top deduction after transferring the 7 mt to the MS and C/P sectors. Transfer of darkblotched rockfish to the MS and C/P sectors, when combined with projected impacts from all other sources, is not expected to result in greater impacts to darkblotched rockfish or other overfished species than originally projected through the end of the year.
This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best available information, consistent with the PCGFMP and its implementing regulations and the Halibut Act and its implementing regulations.
This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.
The aggregate data upon which these actions are based are available for public inspection at the Office of the Administrator, West Coast Region, NMFS, during business hours.
NMFS finds good cause to waive prior public notice and comment on the revisions to groundfish management measures under 5 U.S.C. 553(b) because notice and comment would be impracticable and contrary to the public interest. Also, for the same reasons, NMFS finds good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective October 29, 2015.
At the September 2015 Council meeting, the Council recommended that redistribution of darkblotched rockfish to the MS and C/P sectors be implemented as quickly as possible once a need for additional darkblotched rockfish was identified. Within two weeks of this recommendation, a bycatch event of darkblotched rockfish (4 mt) occurred in the C/P sectors. There was not sufficient time after the September 2015 Council meeting to undergo proposed and final rulemaking before this action needs to be in effect. For the actions implemented in this final rule, affording the time necessary for prior notice and opportunity for public comment would prevent transfer of darkblotched rockfish to the MS and C/P sectors until later in the season, or potentially eliminate the possibility or doing so during the 2015 calendar year entirely, and is therefore impractical. Failing to reapportion darkblotched rockfish to the MS and C/P sectors in a timely manner could result in unnecessary restriction of fisheries if the MS or C/P sectors exceeded their darkblotched allocations. Providing the MS and C/P sector fishermen an opportunity to harvest their limits of Pacific whiting without interruption and without exceeding their darkblotched rockfish bycatch limits allows harvest as intended by the Council, consistent with the best scientific information available. The Pacific whiting fishery contributes a large amount of revenue to the coastal communities of Washington and Oregon and this change allows continued harvest of Pacific whiting while continuing to prevent ACLs of overfished species and the allocations for target species from being exceeded. No aspect of this action is controversial, and changes of this nature were anticipated in the biennial harvest specifications and management measures established for 2015-2016.
Delaying these changes would also keep management measures in place that are not based on the best available information. Such delay would impair achievement of the PCGFMP goals and objectives of managing for appropriate harvest levels while providing for year-round fishing and marketing opportunities.
Accordingly, for the reasons stated above, NMFS finds good cause to waive prior notice and comment and to waive the delay in effectiveness.
Fisheries, Fishing, and Indian Fisheries.
For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:
16 U.S.C. 1801
Office of the Secretary, Department of Education.
Notice of proposed rulemaking.
The Secretary proposes to amend the regulations regarding the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in order to require that all Department grantees awarded direct competitive grant funds openly license to the public all copyrightable intellectual property created with Department grant funds.
These proposed changes would increase the Department's ability to be more strategic with limited resources, broadening the impact of its investments by allowing stakeholders, such as local educational agencies (LEAs), State educational agencies (SEAs), institutions of higher education (IHEs), and other entities, to benefit from these investments, even if they are not themselves recipients of Department funds. An open licensing requirement would also allow the Department to sustain innovations beyond the grant period by encouraging subject matter experts and users to adapt, update, and build upon grant products, stimulating quality and innovation in the development of educational resources. Finally, the proposed requirement would promote equity and access to Department-funded technology and materials and increase transparency and accountability for the Department and its grantees.
We must receive your comments on or before December 3, 2015.
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by email. Please submit your comments only one time, in order to ensure that we do not receive duplicate copies. In addition, please include the Docket ID at the top of your comments.
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Sharon Leu, U.S. Department of Education, 400 Maryland Avenue SW., room 6W252, Washington, DC 20202. Telephone: (202) 453-5646 or by email:
If you use a telecommunications device for the deaf (TDD) or text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department's programs and activities.
In addition to your general comments, we are particularly interested in your feedback on the following questions:
• Should the Department require that copyrightable works be openly licensed prior to the end of the grant period as opposed to after the grant period is over? If yes, what impact would this have on the quality of the final product?
• Should the Department include a requirement that grantees distribute copyrightable works created under a direct competitive grant program? If yes, what suggestions do you have on how the Department should implement such a requirement?
• What further activities would increase public knowledge about the materials and resources that are created using the Department's grant funds and broaden their dissemination?
• What technical assistance should the Department provide to grantees to promote broad dissemination of their grant-funded intellectual property?
• What experiences do you have implementing requirements of open licensing policy with other Federal agencies? Please share your experiences with these different approaches, including lessons learned and recommendations that might be related to this document.
The Department's regulations and policies related to copyrightable works created by Department grant funds have continually evolved with the goal of maximizing the dissemination of these works to the public.
In regulations published in the
After this final rule was promulgated, the Department thereafter amended part 80 on March 11, 1988 (53 FR 8034, 8071), and part 74 on July 6, 1994 (59 FR 34722, 34733-34), to incorporate this copyright policy. These provisions remained in effect until 2014, when the Department removed parts 74 and 80 from title 34 and adopted 2 CFR part 200 (79 FR 75871), including 200.315(b) which reflects the current policy. The 1988, 1994, and 2014 rulemakings did not substantively alter the policy.
We believe that the wide variety of educational materials created through the Department's discretionary competitive grants should be shared more broadly with the public. Even though current policy allows the public to access grant-funded resources for use for Federal Government purposes by seeking permission from the Department, the public rarely requested access to these copyrighted materials, possibly due to administrative barriers, lack of clarity regarding the scope of Federal Government purposes, or lack of information about available products. We believe that removing barriers and clarifying usage rights to these products, including lesson plans, instructional plans, professional development tools, and other teaching and learning resources will benefit the Department's diverse stakeholders and will benefit teaching and learning. These include LEAs, SEAs, IHEs, students, nonprofit educational organizations, and others beyond direct grant recipients. The Department's goal remains to institute a policy that results in broadest and most effective dissemination of grant-funded works to the public, and therefore the Department is proposing to modify this policy to require, with minimal exceptions, that all copyrightable works created under a direct competitive grant program be openly licensed.
Accordingly, the proposed open licensing requirement would not apply to existing grants or existing copyrightable intellectual property. Additionally, the proposed regulations would not apply to grants that provide funding for general operating expenses, grants that provide support to individuals (
These proposed regulations would allow the public to access and use copyrightable intellectual property created with direct competitive grant funds for any purpose, provided that the user gives attribution to the designated authors or copyright holders of the intellectual property.
To this end, the proposed regulation under § 3474.20, requires all Department grantees awarded direct competitive grant funds to openly license to the public all copyrightable intellectual property created with these funds. Open licensing would broaden the impact of ED investments, allowing LEAs, SEAs, IHEs, students, and others beyond direct grant recipients to benefit from the Department's investment. These stakeholders would have free access to and use of all materials produced by grantees, without needing to seek permission from the copyright holder to access such resource for each instance of use or to create derivative works. We believe this access would accelerate innovation and improve quality in education by enabling others to test and build upon Department-
This requirement would also increase the Department's ability to be more strategic with limited resources. For example, in some cases, dissemination of openly licensed materials could reduce the need to fund multiple duplicate projects. In other cases, it could encourage diversity and non-duplication in the types of projects receiving similar funding.
We believe that an open licensing requirement would improve the quality of educational resources and sustain innovations beyond the grant period by encouraging subject matter experts and other users to build upon the grant products and enriching the grant-funded content. We also expect that an open licensing requirement would stimulate innovation in the development of educational resources by encouraging commercial adaptation and derivatives and supporting large-scale adoption of grant products, even after the grant period.
We note that nothing in the proposed regulations would require a grantee to distribute work that a grantee would be required to openly license under proposed § 3474.20. In the
We propose to retain the Federal government's royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so, in order to reserve the right to disseminate certain copyrightable intellectual property created with Department funds, if we determine that such action is the best way to make this content readily available. In the case of State administered or direct formula grant programs not covered by this proposed rule, the Department is exploring additional opportunities to expand dissemination of educational materials produced under those programs and to broaden dissemination of those materials to the public.
Under some direct competitive grants, the Department funds the costs of general operating expenses or the costs to provide support to individuals such as through scholarships or fellowship programs. In these cases, the Department's funding covers expenditures incurred to engage in activities not directly associated with the production of products, even though products are sometimes created. The open licensing requirement would not apply to these grantees, though they are encouraged to consider whether an open license would be appropriate or useful.
This open licensing requirement also does not apply to peer-reviewed research publications that arise from scientific research funded, either fully or partially, from grants awarded by the Institute of Education Sciences, since they are already covered by the Institute's existing public access policy.
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This proposed regulatory action is a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that
We are issuing these proposed regulations only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that these proposed regulations are consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs associated with this regulatory action are those we have determined as necessary for administering the Department's programs and activities.
The open licensing requirement will not impose significant costs on entities that receive assistance through the Department's direct competitive grant programs. Application, submission, and participation in a competitive discretionary grant program are voluntary. The costs of meeting the requirements will be paid for with program funds and therefore will not be a burden for grantees, including small entities. While there are no significant costs, in some limited circumstances, there may be some instances of lost revenue or added costs related to the loss of commercial benefit derived from exclusive copyrights.
Under current regulations, grantees that create copyrightable works as part of a grant program retain unlimited rights to copyright and royalty income while the Department also retains a royalty-free, non-exclusive, and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use without cost, works created with Department grant funds for Federal Government purposes. These rights are assigned to the grantee at the time of the grant award and no further action is necessary to designate these rights. Grantees may establish terms and conditions that permit use and re-use of their works to any member of the public, for each instance of use or for each created work.
Proposed changes to the regulation would require that grantees openly license copyrightable works to enable the public to use the work without restriction, so long as they provide attribution to the grantee as the author of the works or the holder of the copyright and author, if different. While the type of license will differ depending on the type of work created, applying an open license to a grant product typically involves the addition of a brief license identification statement or insertion of a license icon. This could occur following the development of the product, at the same time that the disclaimer currently required under 34 CFR 75.620 is applied.
In this context, the proposed regulations could reduce commercial incentives for an eligible entity to apply to participate in a discretionary grant program. For example, under some competitive grant programs, grant recipients have produced materials that were subsequently sold or licensed to third parties, such as publishing companies or others in the field. Although an open license does not preclude the grantee or any individual from developing commercial products and derivatives from the grant funded material, it does remove the competitive advantage that these grantees currently possess as the exclusive copyright holder. In addition, publishers and other third parties may incur loss of revenue since their commercial product will potentially compete with freely available versions of a similar product. We note, however, that based on the Department's program offices' past grantmaking experiences, relatively few grantees develop and market copyrighted content paid for with Department funds.
However, the proposed regulations would result in significant benefits. The proposed policy would increase the Department's ability to be strategic with limited resources, encouraging diversity and non-duplication in the types of projects that receive funding. By encouraging subject matter experts and other users to build upon the grant products and enrich and update the content, this proposed regulation would ensure the quality and long-term sustainability of innovations created through grant funds.
The proposed regulations would also broaden the impact of the Department's investments, enabling broader and more effective dissemination of grant-funded works to the public. Department stakeholders, such as LEAs, SEAs, IHEs, students, and others beyond direct grant recipients would be able to freely use and access the technology and high-quality materials, promoting equity and especially benefiting resource-poor stakeholders.
For example, the Department's First in the World grant program currently requires grantees to openly license intellectual property. The online remediation tool being created by the Southern New Hampshire University under this grant program will help underprepared, underrepresented, and low-income working adults obtain a postsecondary credential and reduce the time to degree completion. Under the terms of the grant, the open license will allow any other IHE or adult education provider to use this tool to serve the working adults in its service areas, without incurring costs or duplicating efforts of development.
Under the proposed open licensing requirement, stakeholders will be able to more easily access resources that are created by the many other competitive discretionary grant programs at the Department. For example, the Department grantees have created educational materials, assessments, and technical assistance that support the needs of various special populations. These include grants by the Department's Office of Special Education Programs (OSEP) to create resources that support children, youth, and adults with disabilities. An open license would give broad permission for any member of the public to use, adapt, and widely redistribute the assistive technologies, resources for building inclusive communities, and training materials for specialized service personnel to the address particular needs of their own school or community, without the additional administrative burden of seeking permission from the grantee or copyright holder. Similarly, some grants by the Department's Office of Elementary and Secondary Education (OESE) support innovative approaches to literacy to promote reading skills. An open license on those professional development tools and reading resources would allow stakeholders and other members of the public to access and share resources to address the needs of the public beyond those known to the grantee or copyright holder.
Executive Order 12866 and the Presidential memorandum “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.
The Secretary invites comments on how to make these proposed regulations easier to understand, including answers to questions such as the following:
• Are the requirements in the proposed regulations clearly stated?
• Do the proposed regulations contain technical terms or other wording that interferes with its clarity?
• Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?
• Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections? (A “section” is preceded by the symbol “§ ” and a numbered heading; for example, § 3474.20 Open Licensing Requirement for Direct Competitive Grant Programs.)
• Could the description of the proposed regulations in the
• What else could we do to make the proposed regulations easier to understand?
To send any comments that concern how the Department could make these proposed regulations easier to understand, see the instructions in the
This Initial Regulatory Flexibility Analysis presents an estimate of the effect on small entities of the proposed regulations. The U.S. Small Business Administration Size Standards define “for-profit institutions” as “small businesses” if they are independently owned and operated and not dominant in their field of operation with total annual revenue below $7,000,000, and defines “non-profit institutions” as small organizations if they are independently owned and operated and not dominant in their field of operation, or as small entities if they are institutions controlled by governmental entities with populations below 50,000. The Secretary certifies that these proposed regulations would not have a significant economic impact on a substantial number of small entities. We recognize that the proposed rule would eliminate the ability for a grantee to sell
These proposed regulations do not contain any information collection requirements.
These proposed regulations affect direct grant programs of the Department that are subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and actions for these programs.
In accordance with section 411 of the General Education Provisions Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on whether these proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.
You may also access documents of the Department published in the
Accounting, Administrative practice and procedure, Adult education, Aged, Agriculture, American Samoa, Bilingual education, Blind, Business and industry, Civil rights, Colleges and universities, Communications, Community development, Community facilities, Copyright, Credit, Cultural exchange programs, Educational facilities, Educational research, Education, Education of disadvantaged, Education of individuals with disabilities, Educational study programs, Electric power, Electric power rates, Electric utilities, Elementary and secondary education, Energy conservation, Equal educational opportunity, Federally affected areas, Government contracts, Grant programs, Grant programs—agriculture, Grant programs—business and industry, Grant programs—communications, Grant programs—education, Grant programs—energy, Grant programs—health, Grant programs—housing and community development, Grant programs—social programs, Grant administration, Guam, Home improvement, Homeless, Hospitals, Housing, Human research subjects, Indians, Indians—education, Infants and children, Insurance, Intergovernmental relations, International organizations, Inventions and patents, Loan programs, Loan programs social programs, Loan programs—agriculture, Loan programs—business and industry, Loan programs—communications, Loan programs—energy, Loan programs—health, Loan programs—housing and community development, Manpower training programs, Migrant labor, Mortgage insurance, Nonprofit organizations, Northern Mariana Islands, Pacific Islands Trust Territories, Privacy, Renewable Energy, Reporting and recordkeeping requirements, Rural areas, Scholarships and fellowships, School construction, Schools, Science and technology, Securities, Small businesses, State and local governments, Student aid, Teachers, Telecommunications, Telephone, Urban areas, Veterans, Virgin Islands, Vocational education, Vocational rehabilitation, Waste treatment and
For the reasons discussed in the preamble, the Secretary proposes to amend part 3474 of title 2 of the Code of Federal Regulations as follows:
20 U.S.C. 1221e-3, 3474, and 2 CFR part 200, unless otherwise noted.
For direct competitive grants awarded after [EFFECTIVE DATE OF THE FINAL REGULATIONS]:
(a) A grantee that is awarded direct competitive grant funds must openly license to the public new copyrightable materials created in whole, or in part, with Department grant funds and copyrightable modifications made to pre-existing content using Department grant funds, except as provided in paragraph (c) of this section. The license must be worldwide, non-exclusive, royalty-free, perpetual, and irrevocable, and must grant the public permission to access, reproduce, publicly perform, publicly display, adapt, distribute, and otherwise use, for any purposes, copyrightable intellectual property created with direct competitive grant funds, provided that the licensee gives attribution to the designated authors of the intellectual property. The licensee must also include the statement of attribution and disclaimer in 34 CFR 75.620(b).
(b) Except as provided in paragraph (c) of this section, a grantee that is awarded direct competitive grant funds must openly license all computer software source code developed or created with these grant funds under an intellectual property license that allows the public to freely use and build upon computer source code created or developed with these grant funds.
(c) The requirements of paragraphs (a) and (b) of this section do not apply to—
(1) Grants that provide funding for general operating expenses;
(2) Grants that provide support to individuals (
(3) Peer-reviewed research publications that arise from scientific research funded, either fully or partially, from grants awarded by the Institute of Education Sciences that are already covered by the Institute's public access policy found at
(d) The Department reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to change the operating schedule that governs the Florida East Coast Railway (FEC) Railroad Bridge across the New River, mile 2.5, at Fort Lauderdale, FL. This proposed rule implements requirements for the operator designed to ensure that adequate notice of bridge closure times are available to the waterway traffic. It also changes the on demand schedule to an operating regulation requiring the bridge to be open at least 60 minutes in every 2 hour period. Modifying the bridge operating schedule will allow the bridge owner to operate the bridge remotely with assistance from the onsite bridge tender.
Comments and related material must reach the Coast Guard on or before December 3, 2015.
You may submit comments identified by docket number USCG-2015-0271 using the Federal eRulemaking Portal at
If you have questions on this proposed rule, call or email Mr. Rod Elkins with the Coast Guard; telephone 305-415-6989, email
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. 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.
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
From May 18 through October 16, 2015, a test deviation was in effect for the FEC Railroad Bridge (80 FR 28184). The comment period ended on 17 August 2015. There were eight comments received from the test deviation. Of these comments, three comments expressed opposition to a
One of the eight comments requested a public meeting. A public meeting was held on 12 November 2014, and the proposed schedule modification was developed from the input received from the public meeting.
Presently, in accordance with 33 CFR 117.5, the FEC Railroad Bridge is required to open on signal for the passage of vessels.
Prior to implementing a test deviation on May 18, 2015, the Bridge operated without a tender or monitor. An automated system closed the Bridge when a train approached and reopened the Bridge when a train cleared. The Coast Guard received multiple complaints from mariners because there was no means of obtaining notice of bridge closure times or potential closure duration. The proposed schedule, discussed further below, balances the reasonable needs of waterway traffic on the New River with train traffic moving through condensed population areas such as Ft. Lauderdale where train schedules at the crossings cannot be precisely timed because of delays caused by train car loading and vehicular traffic crossing the track.
Also, train bridges must be in the down position well in advance of the train's arrival to ensure that it can safely navigate the bridge or stop if there are problems with the bridge. The purpose of this proposed regulation is to improve navigation on the New River through increased communications and closure time limits.
The FEC Railroad Bridge across the New River, mile 2.5, at Fort Lauderdale, FL is a single leaf bascule bridge. It has a vertical clearance of 4 feet at mean high water in the closed position and horizontal clearance of 60 feet. Traffic on the waterway includes both commercial and recreational vessels.
This proposed rule is for the draw of the FEC Railroad Bridge across the New River, mile 2.5, at Fort Lauderdale, FL, to operate as follows:
(a) The bridge shall be tended constantly.
(b) The bridge tender will utilize a VHF-FM radio to communicate on channels 9 and 16 and may be contacted by telephone at 305-889-5572.
(c) Signs will be posted displaying VHF radio contact information and telephone numbers for the bridge tender and dispatch. A countdown clock giving notice of the time remaining before bridge closure shall be posted at the bridge site and visible for maritime traffic.
(d) A bridge log will be maintained including, at a minimum, bridge opening and closing times.
(e) When the draw is in the fully open position, green lights will be displayed to indicate that vessels may pass.
(f) When a train approaches, the lights flash red and a horn starts four blasts, pauses, and then continues four blasts, then the draw lowers and locks.
(g) After the train has cleared the bridge, the draw opens and the lights turn to green.
(h) The bridge shall not be closed more than 60 minutes combined for any 120 minute time period beginning at 12:01 a.m. each day.
(i) The bridge shall remain open to maritime traffic when trains are not crossing.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
This regulatory action is not a significant regulatory action because it will still allow vessels to pass through the bridge at more consistant intervals while taking into account the reasonable needs of other modes of transportation.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels needing to transit the bridge may experience delays when the bridge is closed to allow train crossings. Vessels will still be allowed to transit this waterway but at more consistent and shorter intervals. This change in operating schedule will still meet the reasonable needs of navigation while taking into account other modes of transportation.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would call 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. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This proposed rule simply promulgates the operating regulations or procedures for drawbridges. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction.
Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule
Bridges.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.
(c) The following requirements apply to the Florida East Coast Railway Railroad Bridge across the New River, mile 2.5, at Fort Lauderdale, FL:
1. The bridge shall be constantly tended.
2. The bridge tender will utilize a VHF-FM radio to communicate on channels 9 and 16 and may be contacted by telephone at 305-889-5572.
3. Signs will be posted displaying VHF radio contact information and telephone numbers for the bridge tender and dispatch. A countdown clock giving notice of time remaining before bridge closure shall remain at the bridge site and must be visible for maritime traffic.
4. A bridge log will be maintained including, at a minimum, bridge opening and closing times.
5. When the draw is in the fully open position, green lights will be displayed to indicate that vessels may pass.
6. When a train approaches, the lights go to flashing red and a horn starts four blasts, pauses, and then continues four blasts then the draw lowers and locks.
7. After the train has cleared the bridge, the draw opens and the lights return to green.
8. The bridge shall not be closed more than 60 minutes combined for any 120 minute time period beginning at 12:01 a.m. each day.
9. The bridge shall remain open to maritime traffic when trains are not crossing.
(d) Reserved
(e) The draw of the Marshal (Seventh Avenue) bridge, mile 2.7 at Fort Lauderdale shall open on signal; except
United States Patent and Trademark Office, Commerce.
Notice of proposed rulemaking; reopening of comment period.
The Leahy-Smith America Invents Act (AIA) provided for new administrative trial proceedings before the Patent Trial and Appeal Board (Board). The United States Patent and Trademark Office (USPTO) issued a number of final rules and a trial practice guide in August and September of 2012 to implement the new administrative trial provisions of the AIA. The USPTO published a request for comments in the
Written comments on the proposed rule published August 20, 2015 (80 FR 50720) must be received on or before November 18, 2015.
Comments must be sent by electronic mail message over the Internet addressed to:
Electronic comments submitted in plain text are preferred, but also may be submitted in ADOBE® portable document format or MICROSOFT WORD® format. Comments not submitted electronically should be submitted on paper in a format that facilitates convenient digital scanning into ADOBE® portable document format. The comments will be available for viewing via the USPTO's Internet Web site (
Susan L. C. Mitchell, Lead Administrative Patent Judge by telephone at (571) 272-9797.
Sections 3, 6, and 18 of the AIA provided for the following new Board administrative trial proceedings: (1)
In issuing the administrative trial proceeding rules and trial practice guide, the USPTO committed to revisiting the rules and practice guide once the Board and public had operated under the rules and practice guide for some period and had gained experience with the new administrative trial proceedings. The USPTO began the process of revisiting the AIA administrative trial proceeding rules and trial practice guide by engaging in a nation-wide listening tour. The USPTO conducted a series of roundtables in April and May of 2014, held in Alexandria, New York City, Chicago, Detroit, Silicon Valley, Seattle, Dallas, and Denver, to share information concerning the AIA administrative trial proceedings with the public and obtain public feedback on these proceedings. The USPTO also published a request for comments in the
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Connecticut. The revision amends Regulations of Connecticut State Agencies (RCSA) section 22a-174-20 to update the requirements for controlling volatile organic compound (VOC) emissions from large aboveground storage tanks. The intended effect of this action is to approve these regulations into the Connecticut SIP. This action is being taken in accordance with the Clean Air Act (CAA).
Written comments must be received on or before December 3, 2015.
Submit your comments identified by Docket ID Number EPA-R01-OAR-2015-0546 for comments by one of the following methods:
1.
2.
3.
4.
5.
Please see the direct final rule which is located in the Rules Section of this
David Mackintosh, Air Quality Planning Unit, U.S. Environmental Protection Agency, New England Regional Office, 5 Post Office Square—Suite 100, (Mail Code OEP05-02), Boston, MA 02109-3912, telephone 617-918-1584, facsimile 617-918-0584, email
In the Final Rules Section of this
For additional information, see the direct final rule which is located in the Rules Section of this
Environmental Protection Agency (EPA).
Proposed rule.
Under the Federal Clean Air Act the Environmental Protection Agency (EPA) is approving revisions to the Oklahoma State Implementation Plan (SIP) submitted by the State of Oklahoma designee. The revisions are administrative in nature and modify redundant or erroneous text within the SIP. The revisions also incorporate new definitions and the current National Ambient Air Quality Standards for four criteria pollutants; delete a subchapter that addresses motor vehicle pollution control devices; and add requirements for certain incinerators.
Written comments should be received on or before December 3, 2015.
Comments may be mailed to Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the
Ms. Carrie Paige, (214) 665-6521,
In the final rules section of this
For additional information, see the direct final rule which is located in the rules section of this
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing approval of a revision to a State Implementation Plan (SIP) submitted by the State of New Mexico through the New Mexico Environment Department (NMED) on March 14, 2014. New Mexico's SIP revision addresses requirements of the Clean Air Act (CAA) and the EPA's rules that require states to submit periodic reports describing progress toward reasonable progress goals (RPGs) established for regional haze and a determination of the adequacy of the State's existing regional haze SIP (RH SIP).
Comments must be received on or before December 3, 2015.
Submit comments, identified by Docket No. EPA-R06-OAR-2014-0237, by one of the following methods:
•
•
The New Mexico regional haze progress report is available online at the following:
Mr. James E. Grady, (214) 665-6745;
Throughout this document, “we,” “our,” or “us” each mean “the EPA.”
Regional haze is visibility impairment that occurs over a wide geographic area primarily from the pollution of fine particles (PM
In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the prevention of any future, and the
Congress added section 169B to the CAA in 1990 to address regional haze issues, and the EPA promulgated regulations addressing regional haze in 1999.
The Regional Haze Rule requires a comprehensive analysis of each state's regional haze SIP every ten years and a progress report every five years. This five-year review is intended to provide a progress report on, and, if necessary, mid-course corrections to, the regional haze SIP. The progress report provides an opportunity for public input on the State's (and the EPA's) assessment of whether the approved regional haze SIP is being implemented appropriately and whether reasonable visibility progress is being achieved consistent with the projected visibility improvement in the SIP. At a minimum, New Mexico must include in its progress report the following seven elements:
(1) Provide a description of the status of implementation of all control measures in the approved RH SIP.
(2) Summarize the emissions reductions achieved through implementation of the control measures.
(3) Assess the visibility conditions and changes for each Class I area in the State.
(4) Analyze the changes in emissions from sources and activities within the State.
(5) Provide an assessment of any significant changes in anthropogenic emissions within or outside the State that have limited or impeded progress in reducing emissions and improving visibility in Class I areas.
(6) Evaluate the sufficiency of the approved RH SIP to meet all RPGs.
(7) Provide a review of the State's visibility monitoring strategy.
New Mexico submitted their progress report SIP for the State
On December 31, 2003, the State of New Mexico submitted a RH SIP with later SIP revisions (July 5, 2011 and October 7, 2013) that addressed the requirements of 40 CFR 51.309.
New Mexico has nine Class I areas within its borders: Bandelier Wilderness, Bosque del Apache National Wildlife Refuge, Carlsbad Caverns National Park, Gila Wilderness, Pecos Wilderness, Salt Creek Wilderness, Wheeler Peak Wilderness, White Mountain Wilderness, and San Pedro Parks Wilderness. San Pedro Parks Wilderness is the only Class I area in New Mexico that is located on the Colorado Plateau.
Through collaboration with the Western Regional Air Partnership (WRAP),
The following sections cover:
• The seven regulatory elements required by the progress report SIP;
• How New Mexico's progress report SIP addressed each element; and
• The EPA's analysis and proposed determination as to whether New Mexico satisfied each part.
40 CFR 51.309(d)(10)(i)(A) requires a description of the status of implementation of all control measures included in the RH SIP for achieving RPGs for Class I areas both within and outside the State.
New Mexico stated in the progress report that it is implementing all long-term control strategies, with the exception of the state adopted State Mobile Source Regulation.
New Mexico evaluated the status of all measures included in its RH SIP in accordance with the requirements under 40 CFR 51.309(d)(10)(i)(A). The major control measures identified by New Mexico in the progress report RH SIP are as follows:
In its initial RH SIP, New Mexico identified ammonium sulfate, particulate organic matter, and coarse mass as the largest contributors to visibility impairment. Many of the contributing sources to visibility impairment in New Mexico are natural, rather than anthropogenic in nature, and are not controllable. The primary sources of ammonium sulfate are point sources and on- and off-road mobile source emissions. For particulate organic matter, the primary sources of emissions are from natural and anthropogenic fire. The primary sources of coarse mass emissions in New Mexico are windblown and fugitive dust. For the progress report, New Mexico focused on those emission sources that were anthropogenic in nature.
The progress report stated that the emissions reductions from implementing the major control measures would ensure that the New Mexico Class I areas would achieve the RPGs. New Mexico included a summary of the implementation status associated with each control measure and quantified the benefits where possible. When comparing baseline to current visibility conditions, the progress report showed that New Mexico is currently on track, if not exceeding, the visibility impairment emission reductions needed to achieve RPG's for 2018.
New Mexico identified one single stationary source in the progress report SIP, the San Juan Generating Station (SJGS), to be subject to BART. The SJGS includes four coal-fired boilers. In the New Mexico 2013 RH SIP, New Mexico determined that the BART controls for boiler units 1 and 4 will have selective non-catalytic reduction (SNCR) air pollution control devices installed for visibility-impairing pollutant reduction. Consistent with the terms in the State's then-pending SIP revision, the report assumed future installation of controls would occur fifteen months following approval of the revised RH SIP (but not earlier than January 31, 2016).
The EPA finds that the progress report SIP adequately reviews the status of New Mexico's BART source. It identifies the controls to be applied; outlines the compliance timeframe for those controls; and shows potential reduction in visibility-impairing pollutants with future BART implementation.
The progress report SIP discusses the SO
Appendix B of the progress report SIP includes the 2011 Regional SO
The progress report SIP affirms that New Mexico developed a state Smoke Management Plan (SMP) to be used as a control measure. The EPA previously approved smoke management rules into the SIP in 2012, which protect the health and welfare of New Mexicans from the impacts of smoke from all sources of fire.
The progress report affirms that New Mexico continues to implement the State's NSR program and asserts that state regulations are up to date with 40 CFR 51.166. NSR applies to all construction permitting for new stationary sources under the CAA, for attainment or non-attainment areas.
Likewise, New Mexico implements the State's PSD program, as has been the case since 1982. PSD is the NSR program for new major
Both PSD and BART protect Class I area visibility in the same way. BART and PSD are complementary programs aimed at regulating the same source categories; either one or the other applies depending upon when the source was constructed. PSD was adopted in 1977 for all new major sources. BART is applied to pre-PSD, to address visibility impacts from existing major sources built 1962 to 1977. BART only addresses visibility, whereas PSD addresses NAAQS, increment consumption, and visibility.
The EPA proposes to conclude that New Mexico adequately addressed the status of control measures in its progress report RH SIP as required by the provisions under 40 CFR 51.309(d)(10)(i)(A). All major control measures (including BART) were identified and the emission reduction strategy behind each control was explained. New Mexico included a summary of the implementation status associated with each control measure and quantified the benefits where possible. In addition, the progress report SIP adequately outlined the compliance timeframe for all controls.
40 CFR 51.309(d)(10)(i)(B) requires a summary of the emission reductions achieved throughout the State through implementation of control measures mentioned in 40 CFR 51.309(d)(10)(i)(A). The progress report must identify and estimate emissions reductions to date in visibility-impairing pollutants from the SIP control measures identified for implementation.
New Mexico reported in figure 3.6 of the progress report SIP that NO
New Mexico explained that the most significant decrease in emissions since the RH SIP revision in June 2011 has been from SO
Part of the observed emission reductions were also the result of controls installed at SJGS completed in 2009 in response to a 2005 consent decree. Future emission reductions to satisfy BART at SJGS will also occur during this planning period, resulting in a significant reduction in total point source emissions in the State. New Mexico estimated that implementation of the BART controls at SJGS would result in NO
Additional control measures included in the SIP were federal and state programs (NSR, PSD, and SMP programs). Qualitatively, the continued implementation of those federal and state measures is expected to continue to reduce emissions. Deciview and aerosol extinction maps provided by New Mexico illustrate both a decrease in magnitude of visibility impairment and relative pollutant contribution in New Mexico and surrounding states for 2005-2009.
The EPA proposes to conclude that New Mexico has adequately summarized the emission reductions achieved throughout the State in its progress report RH SIP as required under 40 CFR 51.309(d)(10)(i)(B). In meeting this requirement, the EPA does not expect states to quantify emission reductions for measures which have not yet been implemented or for which the compliance date has not yet been reached. However, for purposes of future progress reports, we recommend that New Mexico include additional quantitative details on the reductions of each major specific visibility-impairing pollutant and utilize available CAMD data, as appropriate.
40 CFR 51.309(d)(10)(i)(C) requires that for each mandatory Class I Federal area within the State, the State must assess the following visibility conditions and changes, with values for most impaired and least impaired days
1. Assess the current visibility conditions for the most impaired and least impaired days.
2. Analyze the difference between current visibility conditions for the most impaired and least impaired days and baseline visibility conditions.
3. Evaluate the change in visibility impairment for the most impaired and least impaired days over the past five years.
New Mexico provided visibility data for 2000 through 2011 that addressed the three requirements of 40 CFR 51.309(d)(10)(i)(C) for Class I areas in New Mexico. Much of the analysis and visibility data presented in the New Mexico progress report SIP were taken from the
This section requires the report to include deciview values for three separate periods: Baseline visibility conditions, current visibility conditions, and visibility conditions of the past five years. Baseline visibility conditions refer to conditions identified in initial RH SIPs for the 2000-2004 period. Current visibility conditions refer to the most recent five-year average data available at the time the State submitted its progress report. The past five years would be five years before the year used for current visibility conditions.
New Mexico calculated the five-year baseline visibility conditions for 2000-2004; successive five-year average visibility conditions for 2005-2009; and the most recent visibility conditions for 2007-2011. The change in baseline and current visibility was compared to the change in baseline and past five-year visibility.
All Class I areas show visibility improvement over the baseline through the first progress period (2005-2009). In addition, all Class I sites were below the 2018 RPGs for the first progress period except for San Pedro Parks and Salt Creek. The five-year average deciview trends for 2007-2011 progress period achieved visibility improvement for all Class I areas except White Mountain, which got slightly worse by 0.2 dv. All but three sites met the 2018 RPGs during the 2007-2011 period.
The EPA proposes to conclude that New Mexico has adequately addressed the requirements under 40 CFR 51.309(d)(10)(i)(C) to include summaries of monitored visibility data as required by the Regional Haze Rule. For purposes of improved clarity on future reports, the EPA recommends that New Mexico include a graph of rolling averages similar to what was provided in the guidance example,
40 CFR 51.309(d)(10)(i)(D) requires an analysis tracking the change over the past five years in emissions of pollutants contributing to visibility impairment from all sources and activities within the State. Emission changes should be identified by type of source or activity. The analysis must be based on the most recent updated emissions inventory, with estimates projected forward as necessary and appropriate, to account for emissions changes during the applicable five-year period. The EPA evaluated New Mexico's analysis and more detail is provided in the Technical Support Document for this action.
The EPA proposes to conclude that New Mexico has adequately addressed the requirements under 40 CFR 51.309(d)(10)(i)(D) to track changes in emissions of pollutants contributing to visibility impairment from all sources and activities within the State. The analysis in this progress report was based on appropriate available data with sufficient forward projections.
40 CFR 51.309(d)(10)(i)(E) requires an assessment of any significant changes in anthropogenic emissions within or outside the State that have occurred over the past five years that have limited or impeded progress in reducing pollutant emissions and improving visibility in Class I areas impacted by the State's sources.
New Mexico stated in the progress report SIP that there does not appear to be any anthropogenic emissions within New Mexico that would have limited or impeded progress in reducing pollutant emissions or improving visibility. New Mexico stated that SO
The EPA proposes to find that New Mexico has adequately addressed the requirements under 40 CFR 51.309(d)(10)(i)(E) to show that the major contributors of anthropogenic emissions are being reduced and visibility is improving at a uniform rate without having limited or impeded progress.
40 CFR 51.309(d)(10)(i)(F) calls for an assessment of whether the current implementation plan elements and strategies in the RH SIP are sufficient to enable the State, or other states with mandatory Federal Class I areas affected by emissions from the State, to meet all established RPGs.
New Mexico stated in the progress report SIP that the elements and strategies outlined in its RH SIP are sufficient to enable New Mexico and other neighboring states to meet all the established RPGs. To support this conclusion, New Mexico referenced visibility data
Although three Class I sites were not tracking the RPGs at the time of the progress report, New Mexico expects further reduction of SO
The EPA proposes to conclude that New Mexico has adequately addressed the requirements under 40 CFR 51.309(d)(10)(i)(F). The EPA views the requirement of this section as a qualitative assessment that should evaluate emissions and visibility trends, including expected emissions reductions from measures that have not yet become effective. New Mexico referenced the improving visibility trends with appropriately supported data with a focus on future implementation of BART controls.
40 CFR 51.309(10)(i)(G) requires a review of the State's visibility monitoring strategy and any modifications to the strategy as necessary.
The monitoring strategy for regional haze in New Mexico relies upon participation in the IMPROVE
In its progress report SIP, New Mexico summarizes the existing IMPROVE monitoring network: Seven monitoring sites in New Mexico and one in Texas (utilized for Carlsbad Caverns National Park). New Mexico stated that IMPROVE monitoring data served as the baseline for the regional haze program and that future regional haze monitoring strategy must be based on, or directly comparable to the current IMPROVE network. New Mexico concluded that the existing network is adequate and modifications to the visibility monitoring strategy are not necessary at this time.
The EPA proposes to conclude that New Mexico has adequately addressed the sufficiency of its monitoring strategy as required by the provisions under 40 CFR 51.309(d)(10)(i)(G). New Mexico reaffirmed its continued reliance upon the IMPROVE monitoring network. New Mexico also explained the importance of the IMPROVE monitoring network for tracking visibility trends at its Class I areas and identified no expected changes in this network.
Under 40 CFR 51.309(d)(10)(ii), states are required to submit, at the same time as the progress report SIP, a determination of the adequacy of their existing RH SIP and to take one of four possible actions based on information in the progress report. 40 CFR 51.309(d)(10)(ii) requires states to take one of the following actions:
(1) Submit a negative declaration to the EPA that no further substantive revision to the State's existing RH SIP is needed.
(2) If the State determines that the implementation plan is or may be inadequate to ensure reasonable progress due to emissions from sources in another state(s) which participated in a regional planning process, the State must provide notification to the EPA and to the other state(s) which participated in the regional planning process with the states. The State must also collaborate with the other state(s) through the regional planning process for developing additional strategies to address the plan's deficiencies.
(3) Where the State determines that the implementation plan is or may be inadequate to ensure reasonable progress due to emissions from sources in another country, the State shall provide notification, along with available information, to the Administrator.
(4) If the State determines that the implementation plan is or may be inadequate to ensure reasonable progress due to emissions from sources within the State, then the State shall revise its implementation plan to address the plan's deficiencies within one year.
The State of New Mexico has provided the information required under 40 CFR 51.309(d)(10)(i) in the five-year progress report. Based upon this information, New Mexico states in its progress report SIP that it believes that the current Section 309 and 309(g) RH SIPs are adequate to meet the State's 2018 RPGs and require no further revision at this time. Thus, the EPA has received a negative declaration from New Mexico.
The EPA is proposing to approve New Mexico's regional haze five-year progress report SIP revision (submitted on March 11, 2014) as meeting the applicable regional haze requirements set forth in 40 CFR 51.309(d)(10). The EPA is proposing to approve New Mexico's determination that the current RH SIP is adequate to meet the State's 2018 RPGs.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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 CAA; 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).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action does have tribal implications in non-reservation areas of Indian country within the state. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. The EPA is coordinating with tribes regarding this matter.
Environmental protection, Air pollution control, Best Available Retrofit Technology, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Regional haze, Sulfur dioxide, Visibility, Volatile organic compounds.
42 U.S.C. 7401
Federal Communications Commission.
Proposed rule.
In this document the Federal Communications Commission (Commission) proposes to require submarine cable licensees, as a condition of their license, to report on outages involving either lost connectivity or degradation of 50 percent or more of a submarine cable's capacity for periods of at least 30 minutes, regardless of whether the cable's traffic is re-routed. The Commission seeks comment on whether this reporting system is necessary, whether the proposed reporting triggers are appropriate, and whether the reporting system proposed is the most efficient means to accomplish the Commission's goals of gaining visibility into the operational status of submarine cables. The document also seeks comment on ways in which the Commission can act to improve the submarine cable deployment process either on its own accord or by coordinating with other stakeholders.
Submit comments on or before December 3, 2015 and reply comments by December 18, 2015.
You may submit comments, identified by docket number GN 15-206, by any of the following methods:
• Federal Communications Commission's Web site:
• Mail: U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554. 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.
• People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email:
Parties wishing to file materials with a claim of confidentiality should follow the procedures set forth in section 0.459 of the Commission's rules. Confidential submissions may not be filed via ECFS but rather should be filed with the Secretary's Office following the procedures set forth in 47 CFR 0.459. Redacted versions of confidential submissions may be filed via ECFS. For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Michael D. Saperstein, Jr., Attorney Advisor, Public Safety and Homeland Security Bureau, (202) 418-7008 or
This is a summary of the Commission's
Submarine (or “undersea”) cables provide the primary means of connectivity—voice, data and Internet—between the mainland United States and consumers in Alaska, Hawaii, Guam, American Samoa, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands, as well as connectivity between the United States and the rest of the world. Given the role of submarine cables to the nation's economic and national security, there is value to ensuring that infrastructure is reliable, resilient and diverse. Today, however, the ad hoc approach to outage reporting for undersea cables has resulted in a gap in the sufficiency of the information that the Commission staff receives from service providers. To effectuate our statutory obligations of promoting the
In this
In this
Based on our experience, we believe that the Commission needs access to more timely and consistent reporting and information to assess the operational status of submarine cables, including any outages and the associated restoration status of these cables. We seek comment on whether the approach we propose in this item achieves our policy goals, and whether there are other approaches that may also achieve our policy goals. Is there a manner in which the Commission could maintain the UCIS model, either in format or in substance, and ensure it receives the necessary data on submarine cable operational status? What changes would need to be made to the current system?
In light of the foregoing, we propose to replace UCIS in its entirety by extending modified outage reporting requirements in part 4 of our rules to submarine cable licensees.
Pursuant to the Cable Landing License Act and Executive Order 10530, the Commission has promulgated cable landing licensing rules that require a person or entity to obtain a cable landing license to connect: (1) The contiguous United States with any foreign country; (2) Alaska, Hawaii, or United States territories or possessions with a foreign country, the contiguous United States, or with each other; and (3) points within the contiguous United States, Alaska, Hawaii, or a territory or possession in which the cable is laid within international waters (
In order to ensure resiliency of these critically important undersea cables, regardless of whether they are used for domestic or international voice and data traffic, we propose to require that all submarine cable licensees will be subject to Part 4's reporting requirements as further described in this
Many submarine cables are jointly owned and operated by multiple licensees in a consortium. We seek comment on the assumption that, should an outage occur, it will generally cause a disruption for all licensees of that submarine cable. Based on that premise, and in an effort to minimize the burden both on licensees and the Commission, we propose that where there are multiple licensees of the same cable, only one licensee per cable will be required to file an outage report. In particular, we propose an approach whereby all licensees sharing a submarine cable would acknowledge and provide consent for a designated licensee to file on behalf of the cable should an outage occur. We seek comment on this approach.
We observe that using a single licensee to coordinate filing is consistent with our treatment of submarine cables in other contexts. We seek comment on whether requiring only one licensee to file outage data on cables with multiple licensees would be efficacious. Does such an approach present a risk that the Commission will receive insufficient or otherwise incomplete information? Will the “Responsible Licensee” always have sufficient information to timely file and provide a full and accurate report? Should we require licensees to formally designate with the Commission one “Responsible Licensee” per submarine cable to bear the reporting obligation where there are multiple licensees? Does designating a “Responsible Licensee” place that licensee in the position of having to get information from a different licensee who caused or experienced the outage in order to
If we adopt a “Responsible Licensee” reporting paradigm to enhance administrative efficiency and convenience, we believe that every submarine cable licensee has a duty to ensure that outages are properly and adequately reported. We seek comment on this approach. Is such an approach equitable and capable of efficient implementation? Would such an approach create the right incentives for co-licensees to work together to quickly and accurate identify and report on outages? If reports are not timely-filed or accurate due to inability of the “Responsible Licensee” to obtain necessary information from the licensee who caused the outage, would enforcement action be appropriate against the “Responsible Licensee” only, or against co-licensees? Should each licensee be jointly and severally liable for any forfeiture? Are the administrative efficiencies of the Responsible Licensee system beneficial to reporting entities? Would the Responsible Licensee system complicate the Commission's ability to ensure proper reporting?
We propose that an outage sufficient to trigger Part 4 reporting exists for submarine cables if there is a failure or significant degradation in the performance of a submarine cable, regardless of whether traffic traversing that cable can be re-routed to an alternate cable. This proposal, analogous to part 4 reporting for simplex outages, seems appropriate given the possibility of damage to multiple cables due to one or multiple related or unrelated events and the relatively small number of undersea cables available for re-routing generally. We seek comment on this proposal. How do licensees generally provide redundancy, and what are the notable effects on other services, if any?
Further, we propose reporting of a submarine cable disruption when either: (i) an event occurs in which connectivity in either the transmit mode or the receive mode is lost for at least 30 minutes; or (ii) an event occurs in which 50 percent or more of a cable's capacity in either the transmit mode or the receive mode is lost for at least 30 minutes, regardless of whether the traffic is re-routed. In this proposal we distinguish connectivity, which is the fundamental ability to transmit a signal, from capacity, which speaks to the cable's bandwidth or throughput that it is capable of transmitting at any one time. We seek comment on all aspects of this proposal.
We seek comment on whether there are more specific technical aspects of submarine cable performance or operation that, if reported, would enable the Commission to perform more sophisticated and useful outage reporting analysis. Are there any elements of the UCIS reporting structure that should remain if we adopt our proposal to require submarine cable outages under Part 4 of our rules? If we were to retain UCIS, are these reporting elements still applicable? Are there other technical specifications or aspects of submarine cable performance that should trigger a reporting requirement?
We propose to integrate submarine cable outage reporting into the existing NORS platform because it has proven to be an efficient mechanism for both reporting entities and Commission analysis. Our proposed system is similar, but not identical, to other part 4 outage reporting requirements. Here, we propose a three-report system that requires a Notification, an Interim Report to inform the Commission when repairs have been scheduled, and a Final Report for each outage event. We propose that in the event of a planned outage, licensees would not be required to file an Interim Report if the planned nature of the event was appropriately signaled in the Notification.
Under our proposal, a licensee would be required to file a Notification in NORS within 120 minutes from the time that the licensee has determined that an event is reportable. We propose that the Notification would include:
• The name of the reporting entity;
• The name of the cable and a list of all licensees for that cable;
• A brief description of the event, including root cause;
• Whether the event is planned or unplanned;
• The date and time of onset of the outage (for planned events, this is the estimated start time/date of the repair);
• Nearest cable landing station;
• Approximate location of the event (either in nautical miles from the nearest cable landing station or in latitude and longitude);
• Best estimate of the duration of the event (total amount of time connectivity will be lost or 50 percent or more of the capacity will be lost);
• A contact name, contact email address, and contact telephone number by which the Commission's technical staff may contact the reporting entity. We seek comment on all aspects of our proposed Notification. Should we require reporting of additional technical elements of submarine cable performance that would enable the Commission to perform more thorough and systematic outage reporting analysis? What technical elements would be appropriate to include in the Notification and do they differ from those that should be included in the Interim Report and Final Report? Are all of the reporting elements proposed generally known, or knowable with due diligence, to the licensees at the time the Notification would be due? If not, what elements are generally unknown at this stage and when do licensees receive such information? If the outage is a planned outage, should we require advance notification of the planned outage?
Following the Notification, we propose to require licensees to file an Interim Report, if applicable (
• The name of the reporting entity;
• The name of the cable;
• A brief description of the event, including root cause;
• The date and time of onset of the outage;
• Nearest cable landing station;
• Approximate location of the event (either in nautical miles from the nearest cable landing station or in latitude and longitude);
• Best estimate of when the cable is scheduled to be repaired, including approximate arrival time and date of the repair ship, if applicable;
• A contact name, contact email address, and contact telephone number by which the Commission's technical staff may contact the reporting entity. We seek comment on all aspects of our proposed Interim Report. We note that the NORS interface automatically populates the fields where information required duplicates that of the Notification, so the reporting licensee will not have to reenter data unless it is to amend or edit a previously-supplied response. Should we require reporting of additional technical elements of submarine cable performance that would enable the Commission to perform more thorough and systematic outage reporting analysis? What technical elements would be appropriate to include in the Interim
After the Interim Report (if applicable), we propose to require licensees to file a Final Report seven days after the repair is completed. We propose that the Final Report would include:
• The name of the reporting entity;
• The name of the cable;
• Whether the outage was planned or unplanned;
• The date and time of onset of the outage (for planned events, this is the start date and time of the repair);
• A brief description of the event;
• Nearest cable landing station;
• Approximate location of the event (either in nautical miles from the nearest cable landing station or in latitude and longitude);
• Duration of the event (total amount of time connectivity was lost or 50 percent or more of the capacity is lost);
• The restoration method;
• A contact name, contact email address, and contact telephone number by which the Commission's technical staff may contact the reporting entity.
We seek comment on all aspects of our proposed Final Report. We note that the NORS interface automatically populates the fields where information required duplicates that of the Notification and Interim Report, so the reporting licensee will not have to reenter data unless it is to amend or edit a previously-supplied response. Should we require reporting of additional technical elements of submarine cable performance that would enable the Commission to perform more thorough and systematic outage reporting analysis? What technical elements would be appropriate to include in the Final Report and do they differ from those that should be included in the Notification and Interim Report? Are all of the reporting elements proposed generally known, or knowable with due diligence, to the licensees at the time the Final Report would be due? If not, what elements are generally unknown at this stage and when do licensees receive such information?
We propose to adopt substantially the same wording codified in section 4.11 of our rules for the submarine cable outage reporting system to the extent that it addresses authorized personnel, the requirement of good faith, the method of attestation that the information supplied is complete and accurate, and the manner of filing. We seek comment on applying the concepts of this rule to submarine cable reporting.
Section 4.2 of the Commission's rules governing outage reporting states that “[r]eports filed under this part will be presumed to be confidential.” We propose to continue treating this information as presumptively confidential. We seek comment on this proposal. We observe that NORS data is routinely shared with the U.S. Department of Homeland Security (DHS). The Commission is currently seeking comment on whether to share its Part 4 NORS outage reporting data with other federal agencies and/or state governments. We seek comment on whether the decision the Commission adopts regarding sharing outage reporting in the current NORS context should be applicable to information the Commission would receive if it were to extend the outage reporting requirements to submarine cables. What types of federal agencies and/or state and territorial governments would need to access information on submarine cable outage reports? Should such sharing be limited to cases where there is a direct effect on the government entity?
We tentatively conclude that the benefits to be gained from this new reporting regime will substantially outweigh any costs to providers. The benefit of the Commission's situational awareness and ability to facilitate communications alternatives, which would come as a result of promulgating these rules, is particularly amplified with submarine cables due to the relatively small number of submarine cable serving as conduits for traffic to and from the United States.
We are proposing a narrowly-tailored submarine cable outage reporting regime that we believe will have minimal cost to the entities reporting those outages. We seek comment on the tentative conclusion that our proposal's expected benefits will far exceed the minimal costs imposed on reporting entities. In our UCIS OMB Supporting Statement we estimated that the reporting required would cost $265,000 for 5,300 total hours spent on annual reporting (
We conservatively estimate that the total annual burden will be $8,000 for the entire industry once the licensees have set up adequate reporting processes. For the annual burden, we conservatively estimate that there will be 50 reportable events. We conservatively estimate based on our experience with NORS reporting that the Notification will require 15 minutes to complete, the Interim Report will require 45 minutes to complete, and the final report will require one hour to complete, for a total of two hours per reportable event. At an assumed labor cost of $80/hour, and two hours for each of the 50 reporting cycles, the total cost of compliance would be $8,000. We seek comment on this analysis. We recognize that there are costs associated with implementing any new reporting system. What are the incremental costs of implementing the proposed NORS reporting system, recognizing a reporting system may already be in place for filing UCIS reports? To what extent are we proposing to require information that is not readily available as part of the normal course of business in the event of an outage? Are there costs associated with initiating the Responsible Licensee system, such as inter-licensee negotiations, that would add to the burdens associated with our proposal? Does the Responsible Licensee system alleviate the need for many licensees to establish an internal reporting system if they previously lacked one? We seek comment on all aspects of our analysis.
The installation of submarine cable systems involves authorizations or permits from a number of federal and state agencies. We seek comment on the submarine cable deployment processes generally, and request any information concerning, for example, burdensome regulations or other issues that may impede rapid deployment and maintenance of undersea cables. We also seek comment on whether there are any actions we can take or steps we can encourage other agencies to take.
With respect to interagency coordination, the International Bureau, which is responsible for administering submarine cable licenses, in coordination with the Public Safety and Homeland Security Bureau, will reach out to relevant government agencies, under its existing delegated authority, to develop and improve interagency coordination processes and best practices vis-à-vis submarine cable deployment activities and related permits and authorizations to increase transparency and information sharing among the government agencies, cable licensees, and other stakeholders. The Bureaus will report their progress to the Commissioners. Are there additional means in which we may take actions to facilitate investments in and the rapid construction of reliable submarine cable network infrastructure?
The Cable Landing License Act and Executive Order 10530 provide the Commission with authority to grant, withhold, condition and revoke submarine cable landing licenses. We tentatively conclude that that the Cable Landing License Act and Executive Order 10530 provide the Commission authority to adopt the outage reporting rules proposed in this NPRM and to impose compliance obligations with the proposed outage reporting requirements. We seek comment on the Commission's authority under the Cable Landing License Act and Executive Order 10530 to adopt the Part 1 and Part 4 rules on outage reporting obligations proposed in the NPRM.
As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the proposals addressed in the NPRM. The IRFA is set forth in Section VII of this
The NPRM contains proposed new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget to comment on the information collection requirements contained in the NPRM, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.
The proceeding is a “permit-but-disclose” proceeding in accordance with the Commission's
Pursuant to sections 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 the NPRM. Comments should be filed in GN Docket No. 15-206. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS:
Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing.
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8 a.m. to 7 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.
Accordingly,
As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the recommendations in this
We propose measures to improve the utility and effectiveness of the current scheme for receiving information on submarine cable outages, with the ultimate goal of enhancing both our overall understanding of submarine cable system status and our knowledge regarding specific outages disruptions and restoration efforts.
The
The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposals, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
The proposals in the
The entities that the
Facilities-based Carriers. Facilities-based providers of international telecommunications services would fall into the larger category of interexchange carriers. Neither the Commission nor the SBA has developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. Census Bureau data for 2007, which now supersede data from the 2002 Census, show that there were 3,188 firms in this category that operated for the entire year. Of this total, 3,144 had employment of 999 or fewer and 44 firms had had employment of 1,000 employees or more. Thus under this category and the associated small business size standard, the majority of these Interexchange carriers can be considered small entities. According to Commission data, 359 companies reported that their primary telecommunications service activity was the provision of interexchange services. Of these 359 companies, an estimated 317 have 1,500 or fewer employees and 42 have more than 1,500 employees. Consequently, the Commission estimates that the majority of interexchange service providers are small entities that may be affected by rules adopted pursuant to the NPRM.
In the 2009 annual traffic and revenue report, 38 facilities-based and facilities-resale carriers reported approximately $5.8 billion in revenues from international message telephone service (IMTS). Of these, three reported IMTS revenues of more than $1 billion, eight reported IMTS revenues of more than $100 million, 10 reported IMTS revenues of more than $50 million, 20 reported IMTS revenues of more than $10 million, 25 reported IMTS revenues of more than $5 million, and 30 reported IMTS revenues of more than $1 million. Based solely on their IMTS revenues the majority of these carriers would be considered non-small entities under the SBA definition.
The 2009 traffic and revenue report also shows that 45 facilities-based and facilities-resale carriers (including 14 who also reported IMTS revenues) reported $683 million for international private line services; of which four reported private line revenues of more than $50 million, 12 reported private line revenues of more than $10 million, 30 reported revenues of more than $1 million, 34 reported private line revenues of more than $500,000; 41 reported revenues of more than $100,000, while 2 reported revenues of less than $10,000.
The 2009 traffic and revenue report also shows that seven carriers (including one that reported both IMTS and private line revenues, one that reported IMTS revenues and three that reported private line revenues) reported $50 million for international miscellaneous services, of which two reported miscellaneous services revenues of more than $1 million, one reported revenues of more than $500,000, two reported revenues of
Providers of International Telecommunications Transmission Facilities. According to the 2012 Circuit-Status Report, 61 U.S. international facility-based carriers filed information pursuant to section 43.82. Some of these providers would fall within the category of Inter-exchange Carriers, some would fall within the category of Wired Telecommunications Carriers, while others may not. The Commission has not developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. Census Bureau data for 2007, which now supersede data from the 2002 Census, show that there were 3,188 firms in this category that operated for the entire year. Of this total, 3,144 had employment of 999 or fewer and 44 firms had had employment of 1,000 employees or more. Thus under this category and the associated small business size standard, the majority of these Interexchange carriers can be considered small entities. According to Commission data, 359 companies reported that their primary telecommunications service activity was the provision of interexchange services. Of these 359 companies, an estimated 317 have 1,500 or fewer employees and 42 have more than 1,500 employees. The circuit-status report does not include employee or revenue statistics, so we are unable to determine how many carriers could be considered small entities under the SBA standard. Although it is quite possible that a carrier could report a small amount of capacity and have significant revenues, we will consider those 61 carriers to be small entities at this time. In addition, of the 79 carriers that filed an annual circuit-status report for 2009, there were at least four carriers that reported no circuits owned or in use at the end of 2009.
Operators of Undersea Cable Systems. The NPRM seeks comment on whether submarine cable facilities should be subject to reporting requirements in the event of an outage. Neither the Commission nor the SBA has developed a size standard specifically for operators of undersea cables. Such entities would fall within the large category of Wired Telecommunications Carriers. The size standard under SBA rules for that category is that such a business is small if it has 1,500 or fewer employees. Census Bureau data for 2007, which now supersede data from the 2002 Census, show that there were 3,188 firms in this category that operated for the entire year. Of this total, 3,144 had employment of 999 or fewer, and 44 firms had had employment of 1,000 employees or more. Thus under this category and the associated small business size standard, the majority of these carriers can be considered small entities. We do not have data on the number of employees or revenues of operators of undersea cables. Because we do not have information on the number of employees or their annual revenues, we shall consider all such providers to be small entities for purposes of this IRFA.
Operators of Non-Common Carrier International Transmission Facilities. At present, carriers that provide common carrier international transmission facilities over submarine cables are not required to report on outages, though the NPRM seeks comment on whether such carriers should be required to provide outage reports. Neither the Commission nor the SBA has developed a small business size standard specifically for providers of non-common carrier terrestrial facilities. The operators of such terrestrial facilities would fall within the larger category of Wired Telecommunications Carriers. The appropriate size standard under SBA rules for the Wired Telecommunications Carriers category is that such a business is small if it has 1,500 or fewer employees. Census Bureau data for 2007, which now supersede data from the 2002 Census, show that there were 3,188 firms in this category that operated for the entire year. Of this total, 3,144 had employment of 999 or fewer and 44 firms had had employment of 1000 or more.
Incumbent Local Exchange Carriers. Because some of the international terrestrial facilities that are used to provide international telecommunications services may be owned by incumbent local exchange carriers, we have included small incumbent local exchange carriers in this present RFA analysis, to the extent that such local exchange carriers may operate such international facilities. (Local exchange carriers along the U.S.-border with Mexico or Canada may have local facilities that cross the border.) Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange carriers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. Census Bureau data for 2007, which now supersede data from the 2002 Census, show that there were 3,188 firms in this category that operated for the entire year. Of this total, 3,144 had employment of 999 or fewer and 44 firms had had employment of 1000 or more. According to Commission data, 1,307 carriers reported that they were incumbent local exchange service providers. Of these 1,307 carriers, an estimated 1,006 have 1,500 or fewer employees and 301 have more than 1,500 employees. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (
The
The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage or the rule, or any part thereof, for small entities.”
The NPRM seeks comment on its cost-benefit analysis of imposing this new reporting requirement, including information on the extent to which submarine cable licensees already possess the outage information that we propose to require. The Commission takes the position that the national security and economic benefits of providing the Commission with situational awareness of the operating status submarine cables outweighs the minimal cost of reporting proposed. We seek comment on that view. The Commission proposes these rules only after its existing ad hoc and voluntary system of reporting submarine cable outages has failed to provide the Commission with the information it requires. In addition, the Commission proposes that where there are multiple licensees of a single submarine cable that experiences an outage, the licensees of that cable can designate a Responsible Licensee to report on the outage on behalf of all affected licensees. While each licensee maintains the responsibility of ensuring that the proper reports are filed, this process can cut down on the individual reporting requirements for many licensees, possibly including small businesses. The Commission seeks comment on how it can create the most efficient and least burdensome process possible while still meeting its goals.
None.
Disruptions to Communications, Telecommunications, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 1 and 4 as follows:
47 U.S.C. 151, 154(i), 155, 157, 225, 303(r), 309, 1403, 1404, 1451, and 1452.
(g) * * *
(15) Licensees shall file submarine cable outage reports as required in part 4 of this chapter.
(n)(1) With the exception of submarine cable outage reports, and subject to the availability of electronic forms, all applications and notifications described in this section must be filed electronically through the International Bureau Filing System (IBFS). A list of forms that are available for electronic filing can be found on the IBFS homepage. For information on electronic filing requirements, see part 1, subpart Y, and the IBFS homepage at
(2) Submarine cable outage reports must be filed as set forth in part 4 of this chapter.
(o)
47 U.S.C. 34-39, 154, 155, 157, 201, 251, 307, 316, 615a-1, 1302(a), and 1302(b); 5 U.S.C. 301, and Executive Order no. 10530.
(a) In this part, the Federal Communications Commission is setting forth requirements pertinent to the reporting of disruptions to communications and to the reliability and security of communications infrastructures.
(b) The definitions, criteria, and reporting requirements set forth in §§ 4.2 through 4.13 of this part are applicable to the communications providers defined in § 4.3 of this part.
(c) The definitions, criteria, and reporting requirements set forth in § 4.15 of this part are applicable to providers of submarine cable licensees who have been licensed pursuant to 47 U.S.C. 34-39.
(a)
(1) For purposes of this section, “outage” is defined as a failure or degradation in the performance of that communications provider's cable regardless of whether the traffic can be rerouted to an alternate cable.
(2) An “outage” requires reporting under this section when:
(i) An event occurs in which connectivity in either the transmit mode or the receive mode is lost for at least 30 minutes; or
(ii) Fifty percent or more of the capacity of the submarine cable, in either the transmit mode or the receive mode, is lost for at least 30 minutes.
(b)
(1) For each outage that requires reporting under this section, the licensee (or Responsible Licensee as noted herein) shall provide the Commission with a Notification, and Interim Report (subject to the limitations on planned outages in paragraph (b)(2)(iii) of this section), and a Final Outage Report.
(i) For a submarine cable that is jointly owned and operated by multiple licensees, the licensees of that cable may designate a Responsible Licensee that files outage reports under this rule on behalf of all licensees on the affected cable.
(ii) Licensees opting to designate a Responsible Licensee must jointly notify the Chief of the Public Safety and Homeland Security Bureau's Cybersecurity and Communications Reliability Division of this decision in writing. Such notification shall include the name of the submarine cable at
(2) Notification, Interim, and Final Outage Reports shall be submitted by a person authorized by the licensee to submit such reports to the Commission.
(i) The person submitting the Final Outage Report to the Commission shall also be authorized by the licensee to legally bind the provider to the truth, completeness, and accuracy of the information contained in the report. Each Final report shall be attested by the person submitting the report that he/she has read the report prior to submitting it and on oath deposes and states that the information contained therein is true, correct, and accurate to the best of his/her knowledge and belief and that the licensee on oath deposes and states that this information is true, complete, and accurate.
(ii) The Notification is due within 120 minutes of the time of determining that an event is reportable. The Notification shall be submitted in good faith. Licensees shall provide: The name of the reporting licensee; the name of the cable and a list of all licensees for that cable; the date and time of onset of the outage (for planned events, this is the estimated start time/date of the repair); a brief description of the event, including root cause; nearest cable landing station; approximate location of the event (either in nautical miles from the nearest cable landing station or in latitude and longitude); best estimate of the duration of the event (total amount of time connectivity is lost or 50 percent or more of the capacity is lost); whether the event is planned or unplanned; and a contact name, contact email address, and contact telephone number by which the Commission's technical staff may contact the reporting entity.
(iii) The Interim Report is due within 120 minutes of scheduling a repair to a submarine cable. The Interim Report shall be submitted in good faith. Licensees shall provide: The name of the reporting licensee; the name of the cable; a brief description of the event, including root cause; the date and time of onset of the outage; nearest cable landing station; approximate location of the event (either in nautical miles from the nearest cable landing station or in latitude and longitude); best estimate of when the cable is scheduled to be repaired, including approximate arrival time and date of the repair ship, if applicable; a contact name, contact email address, and contact telephone number by which the Commission's technical staff may contact the reporting entity. The Interim report is not required where the licensee has reported in the Notification that the outage at issue is a planned outage.
(iv) The Final Outage Report is due seven days after the repair is completed. The Final Outage Report shall contain: The name of the reporting licensee; the name of the cable, the date and time of onset of the outage (for planned events, this is the start date and time of the repair); a brief description of the event; nearest cable landing station; approximate location of the event (either in nautical miles from the nearest cable landing station or in latitude and longitude); duration of the event (total amount of time connectivity is lost or 50 percent or more of the capacity is lost); whether the event was planned or unplanned; the restoration method; and a contact name, contact email address, and contact telephone number by which the Commission's technical staff may contact the reporting entity. The Final Report must also contain an attestation as described in paragraph (b)(2)(i) of this section.
(v) The Notification, Interim Report, and Final Outage Reports are to be submitted electronically to the Commission. “Submitted electronically” refers to submission of the information using Commission-approved Web-based outage report templates. If there are technical impediments to using the Web-based system during the Notification stage, then a written Notification to the Commission by email to the Chief, Public Safety and Homeland Security Bureau is permitted; such Notification shall contain the information required. Electronic filing shall be effectuated in accordance with procedures that are specified by the Commission by public notice.
(c)
United States Agency for International Development.
Notice of Meeting.
Pursuant to the Federal Advisory Committee Act, notice is hereby given of a meeting of the Advisory Committee on Voluntary Foreign Aid (ACVFA).
The Advisory Committee on Voluntary Foreign Aid (ACVFA) brings together USAID and private voluntary organization officials, representatives from universities, international nongovernment organizations, U.S. businesses, and government, multilateral, and private organizations to foster understanding, communication, and cooperation in the area of foreign aid.
USAID Acting Administrator Ambassador Alfonso E. Lenhardt will make opening remarks, followed by panel discussions among ACVFA members and USAID leadership on the U.S. Global Development Lab. The full meeting agenda will be forthcoming on the ACVFA Web site at
The meeting is free and open to the public. Registration information will be forthcoming on the ACVFA Web site at
Jayne Thomisee,
Animal and Plant Health Inspection Service, USDA.
Revision to and extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request a revision to and extension of approval of an information collection associated with the regulations for the issuance of phytosanitary certificates for plants or plant products being exported to foreign countries.
We will consider all comments that we receive on or before January 4, 2016.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on the regulations for phytosanitary export certification for plants and plant products being exported to foreign countries, contact Mr. Terrance Wells, Export Specialist North America and U.S. Territories, PHP, PPQ, APHIS, 4700 River Road Unit 131, Riverdale, MD 20737; (301) 851-2315. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.
The Animal and Plant Health Inspection Service (APHIS), among other things, provides export certification services to assure other countries that the plants and plant products they are receiving from the United States are free of plant pests specified by the receiving country. Our regulations do not require that we engage in export certification activities. However, we perform this work as a service to exporters who are shipping plants or plant products to countries that require phytosanitary certification as a condition of entry.
The export certification regulations in 7 CFR part 353 describe the procedures for obtaining certification for plants and plant products offered for export or re-export. To request that we perform a phytosanitary inspection, an exporter must complete and submit an Application for Inspection and Certification of Plants and Plant Products for Export (PPQ Form 572).
After assessing the condition of the plants or plant products intended for export (
Since the Office of Management and Budget's (OMB's) last approval of this collection, we have revised the estimates of burden associated with this information collection. We have added activities that were previously not accounted for, such as the recordkeeping burden for PPQ Form 572 or its equivalent, a memorandum of understanding for State inspectors, request for APHIS to negotiate with national plant protection organizations for industry-issued certificates or documentation, memorandum of understanding with industry for inspection and use of International Standards for Phytosanitary Measures Guidelines for Regulating Wood Packaging Material in International Trade (ISPM 15), and the application of an ISPM 15 mark. In addition, we have removed burden that reflected activities that were conducted by APHIS personnel.
We are asking OMB to approve our use of these information collection activities, as described, for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate 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;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(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, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Notice.
We are updating the National Poultry Improvement Plan (NPIP) Program Standards document. In a previous notice, we made available to the public for review and comment revisions to the NPIP Program Standards document describing changes to blood testing procedures for mycoplasma, bacteriological examination procedure changes for
Effective January 4, 2016.
Dr. Denise Brinson, DVM, Director, National Poultry Improvement Plan, VS, APHIS, USDA, 1506 Klondike Road, Suite 101, Conyers, GA 30094-5104; (770) 922-3496.
The regulations in 9 CFR parts 145, 146, and 147 (referred to below as the regulations) contain the provisions of the National Poultry Improvement Plan (NPIP, also referred to below as “the Plan”), a cooperative Federal-State-Industry mechanism for controlling certain poultry diseases. The Animal and Plant Health Inspection Service (APHIS, also referred to as “the Service”) of the U.S. Department of Agriculture (USDA, also referred to as “the Department”) amends these provisions from time to time to incorporate new scientific information and technologies within the Plan.
In § 147.53, paragraph (b) states that approved tests and sanitation procedures used to qualify flocks for NPIP classifications are set out in the NPIP Program Standards.
(a) No comments were received on the notice;
(b) The comments on the notice supported the action described in the notice; or
(c) The comments on the notice were evaluated but did not change the Administrator's determination that approval of the test or sanitation procedure is appropriate based on the standards in paragraph (a) of § 147.53.
On February 6, 2015, we published a notice
We solicited comments on the notice for 30 days ending on March 9, 2015. We received one comment by that date, from a private citizen. However, the
Therefore, in accordance with our regulations in § 147.53(e)(2)(i)(C), we are revising the NPIP Program Standards as described in our previous notice.
7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
Animal and Plant Health Inspection Service, USDA.
Revision to and extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request a revision to and extension of approval of an information collection associated with the regulations for the importation of papaya from Colombia and Ecuador into the continental United States.
We will consider all comments that we receive on or before January 4, 2016.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on the importation of papaya from Colombia and Ecuador, contact Mr. Juan (Tony) Román, Senior Regulatory Policy Specialist, RCC, IRM, PHP, PPQ, APHIS, 4700 River Road Unit 156, Riverdale, MD 20737; (301) 851-2242. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.
Section 319.56-25 of the regulations provides for the importation of papayas from Central America and South America into the continental United States under specified conditions intended to prevent the introduction of certain quarantine pests. Within this section, there are specific requirements for the importation of papaya from Colombia and Ecuador. Some of these requirements include the use of information collection activities, such as trapping records, grower registration, and a phytosanitary certificate issued by the national plant protection organization (NPPO) of the exporting country with an additional declaration confirming that the papaya have been grown, packed, and shipped in accordance with the regulations.
When comparing the regulations to the information collection activities that were previously approved, we found that we did not account for importers requesting phytosanitary certificates from the NPPO of the exporting country, activities associated with recordkeeping, and grower registrations and the associated reinstatements. By adding these activities to this information collection, the overall estimates of burden have increased.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities, as described, for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate 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;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(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, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Revision to and extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request a revision to and extension of approval of an information collection associated with the regulations for the importation of tomatoes from certain Central American countries.
We will consider all comments that we receive on or before January 4, 2016.
You may submit comments by either of the following methods:
• Federal eRulemaking Portal: Go to
• Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2015-0081, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238.
Supporting documents and any comments we receive on this docket may be viewed at
For information on the importation of tomatoes from certain Central American countries, contact Mr. Juan (Tony) Román, Senior Regulatory Policy Specialist, RCC, IRM, PHP, PPQ, APHIS, 4700 River Road Unit 156, Riverdale, MD 20737; (301) 851-2242. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.
Under these regulations, pink or red tomatoes from Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama are subject to certain conditions before entering the United States to prevent the introduction of plant pests into the United States. The regulations require information collection activities, including phytosanitary certificates with an additional declaration statement, production site and packinghouse inspection records, monitoring and auditing of the trapping program, trapping records, and labeling of boxes.
When comparing the regulations to the information collection activities that were previously approved, we found that we did not account for pre-harvest inspections, production site registration and recertification, and export certifications. Additionally, the number of respondents has decreased by 10, but the number of responses from each respondent has increased. By adding these activities and responses to this information collection, the overall estimates of burden have increased.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities, as described, for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate 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;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(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, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
National Agricultural Statistics Service, USDA.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act, the National Agricultural Statistics Service (NASS) announces a meeting of the Advisory Committee on Agriculture Statistics.
Hubert Hamer, Executive Director, Advisory Committee on Agriculture Statistics, telephone: 202-720-3896, eFax: 855-593-5473, or email:
In the
The Committee meeting will take place at the Brown Hotel, 335 West Broadway, Louisville, Kentucky, 40202. Written comments may be filed before or up to two weeks after the meeting with the contact person identified herein at: U.S. Department of Agriculture, National Agricultural Statistics Service, 1400 Independence Avenue SW., Room 5029, South Building, Washington, DC 20250-2000.
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 South Carolina (State) Advisory Committee will hold a meeting on Tuesday, December 1, 2015, for the purpose of welcoming new members to the committee and discussing potential projects.
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 1-888-510-1785, conference ID: 764821. 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 charges for calls they initiate over wireless lines, 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 by January 2, 2016. Written comments may be mailed to the Southern Regional Office, U.S. Commission on Civil Rights, 61 Forsyth Street, Suite 16T126, Atlanta, GA 30303. They may also be faxed to the Commission at (404) 562-7005, or emailed to Regional Director, Jeffrey Hinton at
Records generated from this meeting may be inspected and reproduced at the Southern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available at the South Carolina Advisory Committee link at
The meeting will be held on Tuesday, December 1, 2015, at 12:00 p.m. EST.
The meeting will be by teleconference. Toll-free call-in number: 1-888-510-1785, conference ID: 764821.
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 Kansas Advisory Committee (Committee) will hold a meeting on Thursday, November 19, 2015, at 12:00 p.m. CST for the purpose of discussing preparations for an upcoming hearing on voting rights in the State.
This meeting is available to the public through the following toll-free call-in number: 888-427-9376, conference ID: 1744905. 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. 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 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 after 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
The meeting will be held on Thursday, November 19, 2015, at 12:00 p.m. CST.
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 National Science Foundation Act of 1950 as amended authorizes and directs the National Science Foundation (NSF) “. . . to provide a central clearinghouse for the collection, interpretation, and analysis of data on scientific and engineering resources and to provide a source of information for policy formulation by other agencies of the Federal government.” One of the methods used by NSF to fulfill this mandate is The Business R&D and Innovation Survey (BRDIS)—the primary federal source of information on R&D in the business sector. NSF together with the Census Bureau, the collecting and compiling agent, analyze the data and publish the resulting statistics.
NSF has published annual R&D statistics collected from the Survey of Industrial Research and Development (1953-2007) and BRDIS (2008-2014) for 61 years. The results of the surveys are used to assess trends in R&D expenditures by industry sector, investigate productivity determinants, formulate science and tax policy, and compare individual company performance with industry averages. This survey is the Nation's primary source for international comparative statistics on business R&D spending.
BRDIS will continue to collect the following types of information:
• R&D expense based on accounting standards.
• Worldwide R&D of domestic companies.
• Business segment detail.
• R&D related capital expenditures.
• Detailed data about the R&D workforce.
• R&D strategy and data on the potential impact of R&D on the market.
• R&D directed to application areas of particular national interest.
• Data measuring innovation and intellectual property protection activities.
The following changes will be made to the 2015-2017 BRDIS compared to the 2014 BRDIS:
• Section 3: Adding question on domestic R&D performed by others and paid for by the Federal Government.
• Section 4: Deleting four questions on R&D with technology focus of photonics/optics.
• Section 4: Adding four questions on the Research/Development split for foreign R&D.
Information from BRDIS will continue to support the America COMPETES Reauthorization Act of 2010 as well as other R&D-related initiatives introduced during the clearance period. Other initiatives that have used BRDIS statistics include: The Innovation Measurement—Tracking the State of Innovation in the American Economy (U.S. Department of Commerce); Science of Science and Innovation Policy (NSF); and Rising Above the Gathering Storm (National Research Council).
Policy officials from many Federal agencies rely on these statistics for essential information. Businesses and trade organizations rely on BRDIS data to benchmark their industry's performance against others. For example, total U.S. R&D expenditures statistics have been used by the Bureau of Economic Analysis (BEA) to update the National Income and Product Accounts (NIPAs) and, in fact, the BEA recently has recognized and incorporated R&D as fixed investment in the NIPA. Accurate R&D data are needed to continue the development and effect subsequent updates to this detailed satellite account. Also, NSF, BEA and the Census Bureau periodically update a data linking project that utilizes BRDIS data to augment global R&D investment information that is obtained from BEA's Foreign Direct Investment (FDI) and U.S. Direct Investment Abroad (USDIA) surveys. Further, the Census Bureau links data collected by BRDIS with other statistical files. At the Census Bureau, historical company-level R&D data are linked to a file that contains information on the outputs and inputs of companies' manufacturing plants. Researchers are able to analyze the relationships between R&D funding and other economic variables by using micro-level data.
Individuals and organizations access the survey statistics via the Internet in annual InfoBriefs published by NSF's
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
On August 12, 2015, the Executive Secretary of the Foreign-Trade Zones (FTZ) Board docketed an application submitted by the City of Tampa, grantee of FTZ 79, requesting subzone status subject to the existing activation limit of FTZ 79, on behalf of Swisscosmet Corporation in New Port Richey, Florida.
The application was processed in accordance with the FTZ Act and Regulations, including notice in the
Pursuant to the authority delegated to the FTZ Board's Executive Secretary (15 CFR Sec. 400.36(f)), the application to establish Subzone 79D is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, and further subject to FTZ 79's 2,000-acre activation limit.
Zale Delaware, Inc. (Zale), operator of Subzone 39F, submitted a notification of proposed production activity to the FTZ Board for its facility in Irving, Texas. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on October 26, 2015.
The Zale facility is used for the distribution and assembly of jewelry and accessories. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status materials and components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Zale from customs duty payments on the foreign status components used in export production. On its domestic sales, Zale would be able to choose the duty rate during customs entry procedures that applies to finished diamond rings, diamond ear rings, necklaces and pendants (duty rate 5.5%) for the foreign status inputs noted below. Customs duties also could possibly be deferred or reduced on foreign status production equipment.
The components and materials sourced from abroad include: Cut diamonds, ring mounts, ear ring mounts, necklaces (rope and mixed link) and pendant mounts (duty rate ranges from duty-free to 5.8%).
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is December 14, 2015.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via
For further information, contact Kathleen Boyce at
Enforcement and Compliance, International Trade Administration, Commerce.
Every five years, pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) and the International Trade Commission automatically initiate and conduct a review to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under section 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury.
The following Sunset Reviews are scheduled for initiation in December 2015 and will appear in that month's Notice of Initiation of Five-Year Sunset Review (“Sunset Review”).
No Sunset Review of countervailing duty orders is scheduled for initiation in December 2015.
No Sunset Review of suspended investigations is scheduled for initiation in December 2015.
The Department's procedures for the conduct of Sunset Reviews are set forth in 19 CFR 351.218. The Notice of Initiation of Five-Year (“Sunset”) Reviews provides further information regarding what is required of all parties to participate in Sunset Reviews.
Pursuant to 19 CFR 351.103(c), the Department will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact the Department in writing within 10 days of the publication of the Notice of Initiation.
Please note that if the Department receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue. Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation.
This notice is not required by statute but is published as a service to the international trading community.
Enforcement and Compliance, International Trade Administration, Commerce.
In accordance with section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) is automatically initiating the five-year review (“Sunset Review”) of the antidumping and countervailing duty (“AD/CVD”) orders listed below. The International Trade Commission (“the Commission”) is publishing concurrently with this notice its notice of
The Department official identified in the
The Department's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with 19 CFR 351.218(c), we are initiating Sunset Reviews of the following antidumping and countervailing duty orders:
As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Department's regulations, the Department's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on the Department's Web site at the following address: “
This notice serves as a reminder that any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.
On April 10, 2013, the Department modified two regulations related to AD/CVD proceedings: The definition of factual information (19 CFR 351.102(b)(21)), and the time limits for the submission of factual information
Pursuant to 19 CFR 351.103(d), the Department will maintain and make available a public service list for these proceedings. Parties wishing to participate in any of these five-year reviews must file letters of appearance as discussed at 19 CFR 351.103(d)). To facilitate the timely preparation of the public service list, it is requested that those seeking recognition as interested parties to a proceeding submit an entry of appearance within 10 days of the publication of the Notice of Initiation.
Because deadlines in Sunset Reviews can be very short, we urge interested parties who want access to proprietary information under administrative protective order (“APO”) to file an APO application immediately following publication in the
Domestic interested parties, as defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b), wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the
If we receive an order-specific notice of intent to participate from a domestic interested party, the Department's regulations provide that
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218(c).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Brenda E. Waters, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, telephone: (202) 482-4735.
Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (“the Act”), may request, in accordance with 19 CFR 351.213, that the Department of Commerce (“the Department”) conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.
All deadlines for the submission of comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting date.
In the event the Department limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, the Department intends to select respondents based on U.S. Customs and Border Protection (“CBP”) data for U.S. imports during the period of review. We intend to release the CBP data under Administrative Protective Order (“APO”) to all parties having an APO within five days of publication of the initiation notice and to make our decision regarding respondent selection within 21 days of publication of the initiation
In the event the Department decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, the Department finds that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that requests a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that the Department may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when the Department will exercise its discretion to extend this 90-day deadline, interested parties are advised that, with regard to reviews requested on the basis of anniversary months on or after November 2015, the Department does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance prevented it from submitting a timely withdrawal request. Determinations by the Department to extend the 90-day deadline will be made on a case-by-case basis.
The Department is providing this notice on its Web site, as well as in its “Opportunity to Request Administrative Review” notices, so that interested parties will be aware of the manner in which the Department intends to exercise its discretion in the future.
Opportunity to Request a Review: Not later than the last day of November 2015,
In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review. In addition, a domestic interested party or an interested party described in section 771(9)(B) of the Act must state why it desires the Secretary to review those particular producers or exporters. If the interested party intends for the Secretary to review sales of merchandise by an exporter (or a producer if that producer also exports merchandise from other suppliers) which was produced in more than one country of origin and each country of origin is subject to a separate order, then the interested party must state specifically, on an order-by-order basis, which exporter(s) the request is intended to cover.
Note that, for any party the Department was unable to locate in prior segments, the Department will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to locate the producer or exporter at the same time it files its request for review, in order for the Secretary to determine if the interested party's attempts were reasonable, pursuant to 19 CFR 351.303(f)(3)(ii).
As explained in
Further, as explained in
Following initiation of an antidumping administrative review when there is no review requested of the NME entity, the Department will instruct CBP to liquidate entries for all exporters not named in the initiation notice, including those that were suspended at the NME entity rate.
All requests must be filed electronically in Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”) on Enforcement and Compliance's ACCESS Web site at
The Department will publish in the
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period of the order, if such a gap period is applicable to the period of review.
This notice is not required by statute but is published as a service to the international trading community.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the Marine Mammal Protection Act (MMPA) implementing regulations, we hereby give notice that we have issued an Incidental Harassment Authorization (Authorization) to Lamont-Doherty Earth Observatory (Lamont-Doherty), a component of Columbia University, in collaboration with the National Science Foundation (NSF), to take marine mammals, by harassment, in the eastern
Effective November 19, 2015, through December 31, 2015.
A copy of the final Authorization and application and other supporting documents are available by writing to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, by telephoning the contacts listed here, or by visiting the internet at:
The NSF prepared a draft Environmental Analysis in accordance with Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions” for their proposed federal action. The environmental analysis titled “Environmental Analysis of a Marine Geophysical Survey by the R/V
NMFS prepared an Environmental Assessment (EA) titled, “Proposed Issuance of an Incidental Harassment Authorization to Lamont-Doherty Earth Observatory to Take Marine Mammals by Harassment Incidental to a Marine Geophysical Survey in Eastern Mediterranean Sea, November-December 2015,” in accordance with NEPA and NOAA Administrative Order 216-6. To obtain an electronic copy of these documents, write to the previously mentioned address, telephone the contact listed here (see
NMFS also issued a Biological Opinion under section 7 of the Endangered Species Act (ESA) to evaluate the effects of the survey and Authorization on marine species listed as threatened and endangered. The Biological Opinion is available online at:
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 (
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
On April 20, 2015, NMFS received an application from Lamont-Doherty requesting that NMFS issue an Authorization for the take of marine mammals, incidental to the University of Oregon conducting a seismic survey in the eastern Mediterranean Sea October through November 2015. Following the initial application submission, Lamont-Doherty submitted a revised application with new dates for the proposed survey (approximately mid-November through December, 2015). NMFS considered the revised application adequate and complete on August 25, 2015.
The proposed survey would take place partially within Greece's territorial seas (less than 6 nautical miles (nmi) [11 km; 7 mi] from the shore) and partially in the high seas. However, NMFS cannot authorize the incidental take of marine mammals in the territorial seas of foreign nations, as the MMPA does not apply in those waters. However, NMFS estimated the level of incidental take in the entire activity area (territorial seas and high seas) as part of the analysis supporting the agency's determination under the MMPA that the activity would have a negligible impact on the affected species.
Lamont-Doherty proposes to conduct a high-energy, seismic survey on the R/V
Lamont-Doherty plans to use one source vessel, the
The purpose of the survey is to collect and analyze seismic refraction data on and around the island of Santorini (Thira) to examine the crustal magma plumbing of the Santorini volcanic system. NMFS refers the public to Lamont-Doherty's application for more detailed information on the proposed research objectives which are purely
Lamont-Doherty proposes to conduct the seismic survey for approximately 30 days which includes approximately 16 days of seismic surveying, 11 days for OBS deployment/retrieval, and 1 day of hydrophone streamer deployment. The proposed study (
Lamont-Doherty proposes to conduct one portion of the proposed seismic survey in the Aegean Sea, located approximately between 36.1-36.8° N. and 24.7-26.1° .E in the eastern Mediterranean Sea. Water depths in the Aegean Sea survey area are approximately 20 to 500 meters (m) (66 to 1,640 feet (ft)). Lamont-Doherty would conduct the second portion of the proposed seismic survey over the Hellenic subduction zone which starts in the Aegean Sea at approximately 36.4° N., 23.9° E. and runs to the southwest, ending at approximately 34.9° N., 22.6° E. Water depths in that area range from 1,000 to 3,000 m (3,280 to 9,843 ft). Lamont-Doherty would conduct the proposed seismic survey within the Exclusive Economic Zone (EEZ) and territorial waters of Greece. Greece's territorial seas extend out to six nautical miles (nmi) (7 miles [mi]; 11 kilometers [km]).
The
NMFS outlined the vessel's specifications in the notice of proposed Authorization (80 FR 53623, September 4, 2015). NMFS does not repeat the information here as the vessel's specifications have not changed between the notice of proposed Authorization and this notice of an issued Authorization.
NMFS outlined the details regarding Lamont-Doherty's data acquisition activities using the airguns, multibeam echosounder, and the sub-bottom profiler in the notice of proposed Authorization (80 FR 53623, September 4, 2015). NMFS does not repeat the information here as the data acquisition activities have not changed between the notice of proposed Authorization and this notice of an issued Authorization.
For a more detailed description of the authorized action, including vessel and acoustic source specifications, metrics, characteristics of airgun pulses, predicted sound levels of airguns, etc., please see the notice of proposed Authorization (80 FR 53623, September 4, 2015) and associated documents referenced above this section.
NMFS published a notice of receipt of Lamont-Doherty's application and proposed Authorization in the
NMFS addresses any comments specific to Lamont-Doherty's application related to the statutory and regulatory requirements or findings that NMFS must make under the MMPA in order to issue an Authorization. Following is a summary of the public comments and NMFS' responses.
Lamont-Doherty is not only following mitigation and monitoring measures for marine mammals required under international regulations but must also implement mitigation measures as required by NMFS' issued Authorization in the waters outside the Greek territorial sea per the MMPA. NMFS analyzed the proposed seismic survey in accordance with the MMPA, the Endangered Species Act (ESA), and National Environmental Policy Act (NEPA). Under those statutes, NMFS analyzed the impacts to marine mammals (including those listed as threatened or endangered under the ESA), their habitat, and to the availability of marine mammals for taking for subsistence uses. The MMPA analyses concluded that the activities would have a negligible impact on affected marine mammal species or stocks and would not have an unmitigable adverse impact on the availability of marine mammals for taking for subsistence uses (which is not applicable in this case). The ESA analysis concluded that the activities likely would not jeopardize the continued existence of ESA-listed species or destroy or adversely modify designated critical habitat. The NEPA analysis concluded that there would not be a significant impact on the human environment. Moreover, NMFS does not expect this activity to result in the death of any marine mammal species and has not authorized take by serious injury or mortality.
NMFS described Lamont-Doherty's proposed mitigation and monitoring measures in the notice of proposed authorization (80 FR 53623, September 4, 2015) as well as additional mitigation measure required by NMFS to effect the least practicable adverse impact on marine mammals. Despite some minor differences between implementation of NMFS' requirements under the MMPA and ESA for seismic surveys and those listed under ACCOBAMS Resolution 4.17, the overall guidelines required for seismic surveys are nearly identical. For example, Resolution 4.17 lists 19 guidelines (a-s) for seismic surveys and airgun uses. One guideline (r) is not applicable to this action as it covers multiple seismic survey operations and NMFS' requirements under the MMPA and ESA closely track to the additional 16 guidelines (a, b, c, d, f, g, h, i, j, k, l, m, n, o, p, q, and s) for marine mammals.
As stated previously in Comment 1, the Ministry of Foreign Affairs of the Hellenic Republic granted Lamont-Doherty permission to conduct the proposed seismic survey in areas of Greek jurisdiction provided that they comply with all international regulations, including ACCOBAMS Resolution 4.17 (m),
The CBD aims to address conservation of open-ocean and deep-sea ecosystems using the concept of EBSAs (Clark
The U.S. is not a party to the Convention, and NMFS does not have the authority to require an applicant for an MMPA Authorization to comply with the CBD. Again, NMFS' mitigation measures are sufficient to effect the least practicable adverse impact on marine mammals in the two EBSAs. Further, as a condition of vessel clearance from the Greek government, Lamont-Doherty would also comply with Greek legislation, in particular Greek Law Nos. 2971/2001 and 3028/2002, which regulate the protection of coastal ecosystems.
Lamont-Doherty's application (LGL, 2015) and the NSF's draft environmental analyses (NSF, 2015) describe the approach to establishing mitigation exclusion and buffer zones. In summary, Lamont-Doherty acquired field measurements for several array configurations at shallow- and deep-water depths during acoustic verification studies conducted in the northern Gulf of Mexico in 2003 (Tolstoy
In 2015, Lamont-Doherty explored solutions to this issue by conducting a retrospective sound power analysis of one of the lines acquired during Lamont-Doherty's seismic survey offshore New Jersey in 2014 (Crone, 2015). NMFS presented a comparison of the predicted radii (
Briefly, Crone's (2015) preliminary analysis, specific to the proposed survey site offshore New Jersey, confirmed that in-situ, site specific measurements and estimates of the 160- and 180-decibel (dB) isopleths collected by the
In 2010, Lamont-Doherty assessed the accuracy of their modeling approach by comparing the sound levels of the field measurements acquired in the Gulf of Mexico study to their model predictions (Diebold
In 2012, Lamont-Doherty used a similar process to model exclusion and buffer zones for a shallow-water seismic survey in the northeast Pacific Ocean offshore Washington in 2012. Lamont-Doherty conducted the shallow-water survey using the same airgun configuration proposed for this seismic survey (
At present, Lamont-Doherty cannot adjust their modeling methodology to add the environmental and site-specific parameters as requested by the Commission. NMFS continues to work with Lamont-Doherty and the NSF to address the issue of incorporating site-specific information to further inform the analysis and development of mitigation measures in oceanic and coastal areas for future seismic surveys with Lamont-Doherty. Also, NMFS will continue to work with Lamont-Doherty, the NSF, and the Commission on continuing to verify the accuracy of
Lamont-Doherty has conveyed to NMFS that additional modeling efforts to refine the process and conduct comparative analysis may be possible with the availability of research funds and other resources. Obtaining research funds is typically through a competitive process, including those submitted to U.S. Federal agencies. The use of models for calculating buffer and exclusion zone radii and for developing take estimates is not a requirement of the MMPA incidental take authorization process. Furthermore, NMFS does not provide specific guidance on model parameters nor prescribes a specific model for applicants as part of the MMPA incidental take authorization process at this time. There is a level of variability not only with parameters in the models, but also the uncertainty associated with data used in models, and therefore, the quality of the model results submitted by applicants. NMFS considers this variability when evaluating applications. Applicants use models as a tool to evaluate potential impacts, estimate the number of, and type of takes of marine mammals, and for designing mitigation. NMFS takes into consideration the model used and its results in determining the potential impacts to marine mammals; however, it is just one component of the analysis during the MMPA consultation process as NMFS also takes into consideration other factors associated with the proposed action, (
NMFS considered Nowacek
NMFS is constantly evaluating new science and how to best incorporate it into our decisions. This process involves careful consideration of new data and how it is best interpreted within the context of a given management framework. These papers and the studies discussed in our notice of proposed authorization (80 FR 53623, September 4, 2015) emphasize the importance of context (
With respect to the use of current thresholds, NMFS' practice has been to apply the 160 dB re: 1 µPa received level threshold for underwater impulse sound levels to determine whether take by Level B harassment occurs. Specifically, NMFS derived the 160 dB threshold data from mother-calf pairs of migrating gray whales (Malme
NMFS discusses the science on this issue qualitatively in our analysis of potential effects to marine mammals (80 FR 53623, September 4, 2015). Accordingly, it is not a matter of merely replacing the existing threshold with a new one. NMFS is currently developing revised acoustic guidelines for assessing the effects of anthropogenic sound on marine mammals. Until NMFS finalizes these guidelines (a process that includes public notice and comment and peer review), NMFS will continue to rely on the existing criteria for Level A and Level B harassment shown in Table 4 of the notice for the proposed authorization (80 FR 53623, September 4, 2015).
As mentioned in the
With regards to the information presented in DeRuiter
DeRuiter
With regards to Kasetlein
Limited available data suggest that harbor porpoises show avoidance of seismic operations. Based on data collected by observers on seismic vessels off the United Kingdom from 1994 to 2010, detection rates of harbor porpoises were significantly higher when airguns were silent versus when large or small arrays were operating; in addition, observers noted that harbor porpoises were farther away from an active array versus when it was silent and were most often seen traveling away from the airgun array when it was in operation (Stone, 2015). Thompson
NMFS acknowledges that there is more recent information available bearing on the relevant exposure levels for assessing temporary and permanent hearing impacts. (See
As for ocean bottom seismometers, NMFS considered the brief (8 milliseconds) acoustic signals emanating from the devices at the time of retrieval to be so brief as to not risk masking other acoustic information relevant to marine mammals. Therefore, NMFS has not authorized take from the acoustic release signals from ocean bottom seismometers.
NMFS considered the potential for behavioral responses such as the Madagascar stranding and indirect injury or mortality from Lamont-Doherty's use of the multibeam echosounder in the notice for the proposed authorization (80 FR 53623, September 4, 2015, see Potential Effects of Other Acoustic Devices, pages 53636-53637). NMFS does not repeat that information here, but notes that the International Scientific Review Panel tasked to investigate the stranding stated that the risk of using multi-beam echosounders may be very low given the extensive use of these systems worldwide on a daily basis and the lack of direct evidence of such responses previously reported (Southall,
NMFS notes that the multi-beam in use on this seismic survey is not operating in the same way as it was in Madagascar. The Authorization requires Lamont-Doherty to plan to conduct the seismic surveys (especially when near land) from the coast (inshore) and proceed towards the sea (offshore) in order to avoid the potential herding “herding of sensitive species” into canyons and other similar areas.
Regarding the 2002 stranding event in the Gulf of California, the multi-beam echosounder system was on a different vessel, the R/V
In addition to the information presented in the notice for the proposed authorization (80 FR 53623, September 4, 2015), NMFS also considered recent studies that assessed foraging energetics (Melcon
The findings of New
NMFS acknowledges uncertainties in estimating take in the notice for the proposed authorization (80 FR 53623, September 4, 2015). Given the many uncertainties in predicting the quantity and types of impacts of sound on marine mammals, it is common practice to estimate how many animals are likely to be present within a particular
Table 1 in this notice provides the following: 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
Lamont-Doherty presented species information in Table 2 of their application but excluded information for certain pinniped and cetacean species because they anticipated that these species would have a low likelihood of occurring in the survey area. Based on the best available information, NMFS expects that there may be a potential for certain cetacean and pinniped species to occur within the survey area (
NMFS refers the public to Lamont-Doherty's application, NSF's draft environmental analysis (see
NMFS provided a summary and discussion of the ways that the types of stressors associated with the specified activity (
The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative discussion of the number of marine mammals anticipated to be taken by this activity. The “Negligible Impact Analysis” section will include a discussion of how this specific activity will impact marine mammals. The Negligible Impact analysis considers the anticipated level of take and the effectiveness of mitigation measures to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks.
Operating active acoustic sources, such as airgun arrays, has the potential for adverse effects on marine mammals. The majority of anticipated impacts would be from the use of acoustic sources. The effects of sounds from airgun pulses might include one or more of the following: Tolerance, masking of natural sounds, behavioral disturbance, and temporary or permanent hearing impairment or non-auditory effects (Richardson
In the “Potential Effects of the Specified Activity on Marine Mammals” section in the notice for the proposed authorization (80 FR 53623, September 4, 2015), NMFS included a qualitative discussion of the different ways that Lamont-Doherty's seismic survey may potentially affect marine mammals. Marine mammals may behaviorally react to sound when exposed to anthropogenic noise. These behavioral reactions are often shown as: Changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where noise sources are located; and/or flight responses (
Masking is the obscuring of sounds of interest by other sounds, often at similar frequencies. Marine mammals use acoustic signals for a variety of purposes, which differ among species, but include communication between individuals, navigation, foraging, reproduction, avoiding predators, and learning about their environment (Erbe and Farmer, 2000; Tyack, 2000). Masking, or auditory interference, generally occurs when sounds in the environment are louder than, and of a similar frequency as, auditory signals an animal is trying to receive. Masking is a phenomenon that affects animals that are trying to receive acoustic information about their environment, including sounds from other members of their species, predators, prey, and sounds that allow them to orient in their environment. Masking these acoustic signals can disturb the behavior of individual animals, groups of animals, or entire populations. For the airgun sound generated from Lamont-Doherty's seismic survey, sound will consist of low frequency (under 500 Hz) pulses with extremely short durations (less than one second). Masking from airguns is more likely in low-frequency marine mammals like mysticetes. There is little concern that masking would occur near the sound source due to the brief duration of these pulses and relative silence between air gun shots (approximately 22 to 170 seconds). Masking is less likely for mid- to high-frequency cetaceans and pinnipeds.
Hearing impairment (either temporary or permanent) is also unlikely. Given the higher level of sound necessary to cause permanent threshold shift as compared with temporary threshold shift, it is considerably less likely that permanent threshold shift would occur during the seismic survey. Cetaceans generally avoid the immediate area around operating seismic vessels, as do some other marine mammals. Some pinnipeds show avoidance reactions to airguns.
The
NMFS refers the reader to Lamont-Doherty's application, the NSF's environmental analysis for additional information on the behavioral reactions (or lack thereof) by all types of marine mammals to seismic vessels. NMFS has reviewed these data along with new information submitted during the public comment period and based our decision on the relevant information.
NMFS included a detailed discussion of the potential effects of this action on marine mammal habitat, including physiological and behavioral effects on marine mammal prey items (
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).
Lamont-Doherty has reviewed the following source documents and has incorporated a suite of proposed mitigation measures into their project description.
(1) Protocols used during previous Lamont-Doherty and Foundation-funded seismic research cruises as approved by us and detailed in the Foundation's 2011 PEIS and 2015 draft environmental analysis;
(2) Previous incidental harassment authorizations applications and authorizations that NMFS has approved and authorized; and
(3) Recommended best practices in Richardson
To reduce the potential for disturbance from acoustic stimuli associated with the activities, Lamont-Doherty, and/or its designees have proposed to implement the following mitigation measures for marine mammals:
(1) Vessel-based visual mitigation monitoring;
(2) Proposed exclusion zones;
(3) Power down procedures;
(4) Shutdown procedures;
(5) Ramp-up procedures; and
(6) Speed and course alterations.
NMFS reviewed Lamont-Doherty's proposed mitigation measures and has proposed additional measures to effect the least practicable adverse impact on marine mammals. They are:
(1) Expanded shutdown procedures for all pinnipeds, including Mediterranean monk seals;
(2) Expanded power down procedures for concentrations of six or more whales that do not appear to be traveling (
(3) Delayed conduct of the three tracklines nearest to Anafi Island as late as possible (
(4) Expanded exclusion zone of 100 m (328 ft) for the mitigation airgun in shallow water depths for pinnipeds and cetaceans; and
(5) Modified transit patterns to conduct acquisition activities from the coast in a seaward direction to the maximum extent practicable.
Lamont-Doherty would position observers aboard the seismic source vessel to watch for marine mammals near the vessel during daytime airgun operations and during any start-ups at night. Observers would also watch for marine mammals near the seismic vessel for at least 30 minutes prior to the start of airgun operations after an extended shutdown (
During seismic operations, at least four protected species observers would be aboard the
Two observers on the
The
Lamont-Doherty would immediately power down or shutdown the airguns when observers see marine mammals within or about to enter the designated exclusion zone. The observer(s) would continue to maintain watch to determine when the animal(s) are outside the exclusion zone by visual confirmation. Airgun operations would not resume until the observer has confirmed that the animal has left the zone, or if not observed after 15 minutes for species with shorter dive durations (small odontocetes and pinnipeds) or 30 minutes for species with longer dive durations (mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, killer, and beaked whales).
Lamont-Doherty would use safety radii to designate exclusion zones and to estimate take for marine mammals. Table 3 shows the distances at which one would expect to receive sound levels (160-, 180-, and 190-dB,) from the airgun array and a single airgun. If the protected species visual observer detects marine mammal(s) within or about to enter the appropriate exclusion zone, the
The 180- or 190-dB level shutdown criteria are applicable to cetaceans as specified by NMFS (2000). Lamont-Doherty used these levels to establish the exclusion zones as presented in their application.
A power down involves decreasing the number of airguns in use such that the radius of the 180-dB or 190-dB exclusion zone is smaller to the extent that marine mammals are no longer within or about to enter the exclusion zone. A power down of the airgun array can also occur when the vessel is moving from one seismic line to another. During a power down for mitigation, the
If the observer detects a marine mammal outside the exclusion zone and the animal is likely to enter the zone, the crew would power down the airguns to reduce the size of the 180-dB or 190-dB exclusion zone before the animal enters that zone. Likewise, if a mammal is already within the zone after detection, the crew would power-down the airguns immediately. During a power down of the airgun array, the crew would operate a single 40-in
• The observer has visually observed the animal leave the exclusion zone; or
• An observer has not sighted the animal within the exclusion zone for 15 minutes for species with shorter dive durations (
The
NMFS estimates that the
The
(1) If an animal enters the exclusion zone of the single airgun after the crew has initiated a power down; or
(2) If an observer sees the animal is initially within the exclusion zone of the single airgun when more than one airgun (typically the full airgun array) is operating.
During periods of active seismic operations, there are occasions when the
If the full exclusion zone is not visible to the observer for at least 30 minutes prior to the start of operations in either daylight or nighttime, the
If one airgun has operated during a power down period, ramp-up to full power would be permissible at night or in poor visibility, on the assumption that marine mammals would be alerted to the approaching seismic vessel by the sounds from the single airgun and could move away. The vessel's crew would not initiate a ramp-up of the airguns if an observer sees the marine mammal within or near the applicable exclusion zones during the day or close to the vessel at night.
Ramp-up of an airgun array provides a gradual increase in sound levels, and involves a step-wise increase in the number and total volume of airguns firing until the full volume of the airgun array is achieved. The purpose of a ramp-up is to “warn” marine mammals in the vicinity of the airguns, and to provide the time for them to leave the area and thus avoid any potential injury or impairment of their hearing abilities. Lamont-Doherty would follow a ramp-up procedure when the airgun array begins operating after an 8 minute period without airgun operations or when shut down has exceeded that period. Lamont-Doherty has used similar waiting periods (approximately eight to 10 minutes) during previous seismic surveys.
Ramp-up would begin with the smallest airgun in the array (40 in
If the complete exclusion zone has not been visible for at least 30 minutes prior to the start of operations in either daylight or nighttime, Lamont-Doherty would not commence the ramp-up unless at least one airgun (40 in
Considering the highly endangered status of Mediterranean monk seals, the
To further reduce impacts to Mediterranean monk seals during the peak of the pupping season (September through November), NMFS is requiring Lamont-Doherty to conduct the three proposed tracklines nearest to Anafi Island as late as possible (
Last, the
If during seismic data collection, Lamont-Doherty detects marine mammals outside the exclusion zone and, based on the animal's position and direction of travel, is likely to enter the exclusion zone, the
To the maximum extent practicable, the
NMFS has carefully evaluated Lamont-Doherty's proposed mitigation measures in the context of ensuring that we prescribe the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:
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 airgun operations that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).
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 Lamont-Doherty's proposed measures, as well as other measures proposed by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
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 we expect to be present in the proposed action area.
Lamont-Doherty submitted a marine mammal monitoring plan in section XIII of the Authorization application. NMFS, NSF, or Lamont-Doherty 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 the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and during other times and locations, in order to generate more data to contribute to the analyses mentioned later;
2. An increase in our understanding of how many marine mammals would be affected by seismic airguns and other active acoustic sources and the likelihood of associating those exposures with specific adverse effects, such as behavioral harassment, temporary or permanent threshold shift;
3. An increase in our understanding of how marine mammals respond to stimuli that we expect to result in take and how those anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:
a. Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (
b. Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (
c. Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;
4. An increased knowledge of the affected species; and
5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.
Lamont-Doherty proposes to sponsor marine mammal monitoring during the present project to supplement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the Authorization. Lamont-Doherty understands that NMFS would review the monitoring plan and may require refinements to the plan. Lamont-Doherty planned the monitoring work as a self-contained project independent of any other related monitoring projects that may occur in the same regions at the same time. Further, Lamont-Doherty is prepared to discuss coordination of its monitoring program with any other related work that might be conducted by other groups working insofar as it is practical for Lamont-Doherty.
Passive acoustic monitoring would complement the visual mitigation monitoring program, when practicable. Visual monitoring typically is not effective during periods of poor visibility or at night, and even with good visibility, is unable to detect marine mammals when they are below the surface or beyond visual range. Passive acoustical monitoring can improve detection, identification, and localization of cetaceans when used in conjunction with visual observations. The passive acoustic monitoring would serve to alert visual observers (if on duty) when vocalizing cetaceans are detected. It is only useful when marine mammals call, but it can be effective either by day or by night, and does not depend on good visibility. The acoustic observer would monitor the system in real time so that he/she can advise the visual observers if they acoustically detect cetaceans.
The passive acoustic monitoring system consists of hardware (
One acoustic observer, an expert bioacoustician with primary responsibility for the passive acoustic monitoring system would be aboard the
One acoustic observer would monitor the acoustic detection system by listening to the signals from two channels via headphones and/or speakers and watching the real-time spectrographic display for frequency ranges produced by cetaceans. The observer monitoring the acoustical data would be on shift for one to six hours at a time. The other observers would rotate as an acoustic observer, although the expert acoustician would be on passive acoustic monitoring duty more frequently.
When the acoustic observer detects a vocalization while visual observations are in progress, the acoustic observer on duty would contact the visual observer immediately, to alert him/her to the presence of cetaceans (if they have not
Observers would record data to estimate the numbers of marine mammals exposed to various received sound levels and to document apparent disturbance reactions or lack thereof. They would use the data to help better understand the impacts of the activity on marine mammals and to estimate numbers of animals potentially `taken' by harassment (as defined in the MMPA). They will also provide information needed to order a power down or shut down of the airguns when a marine mammal is within or near the exclusion zone.
When an observer makes a sighting, they will record the following information:
1. Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction to the airguns or vessel (
2. Time, location, heading, speed, activity of the vessel, sea state, visibility, and sun glare.
The observer will record the data listed under (2) at the start and end of each observation watch, and during a watch whenever there is a change in one or more of the variables.
Observers will record all observations and power downs or shutdowns in a standardized format and will enter data into an electronic database. The observers will verify the accuracy of the data entry by computerized data validity checks during data entry and by subsequent manual checking of the database. These procedures will allow the preparation of initial summaries of data during and shortly after the field program, and will facilitate transfer of the data to statistical, graphical, and other programs for further processing and archiving.
Results from the vessel-based observations will provide:
1. The basis for real-time mitigation (airgun power down or shutdown).
2. Information needed to estimate the number of marine mammals potentially taken by harassment, which Lamont-Doherty must report to the Office of Protected Resources.
3. Data on the occurrence, distribution, and activities of marine mammals and turtles in the area where Lamont-Doherty would conduct the seismic study.
4. Information to compare the distance and distribution of marine mammals and turtles relative to the source vessel at times with and without seismic activity.
5. Data on the behavior and movement patterns of marine mammals detected during non-active and active seismic operations.
Lamont-Doherty would submit a report to us and to NSF within 90 days after the end of the cruise. The report would describe the operations conducted and sightings of marine mammals near the operations. The report would provide full documentation of methods, results, and interpretation pertaining to all monitoring. The 90-day report would summarize the dates and locations of seismic operations, and all marine mammal sightings (dates, times, locations, activities, associated seismic survey activities). The report would also include estimates of the number and nature of exposures that occurred above the harassment threshold based on the observations.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner not permitted by the authorization (if issued), such as 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).
Lamont-Doherty shall not resume its activities until we are able to review the circumstances of the prohibited take. NMFS shall work with Lamont-Doherty to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Lamont-Doherty may not resume their activities until notified by us via letter, email, or telephone.
In the event that Lamont-Doherty 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 this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS would work with Lamont-Doherty to determine whether modifications in the activities are appropriate.
In the event that Lamont-Doherty 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, section 3(18) the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
Acoustic stimuli (
NMFS' practice is to apply the 160 dB re: 1 µPa received level threshold for underwater impulse sound levels to predict whether behavioral disturbance that rises to the level of Level B harassment is likely to occur. NMFS' practice is to apply the 180 dB re: 1 µPa received level threshold for underwater impulse sound levels to predict whether permanent threshold shift (auditory injury), which is considered Level A harassment, is likely to occur.
Given the many uncertainties in predicting the quantity and types of impacts of sound on marine mammals, it is common practice to estimate how many animals are likely to be present within a particular distance of a given activity, or exposed to a particular level of sound and use that information to predict how many animals are taken. In practice, depending on the amount of information available to characterize daily and seasonal movement and distribution of affected marine mammals, distinguishing between the numbers of individuals harassed and the instances of harassment can be difficult to parse. Moreover, when one considers the duration of the activity, in the absence of information to predict the degree to which individual animals are likely exposed repeatedly on subsequent days, the simple assumption is that entirely new animals are exposed in every day, which results in a take estimate that in some circumstances overestimates the number of individuals harassed.
The following sections describe NMFS' methods to estimate take by incidental harassment. We base these estimates on the number of marine mammals that could be harassed by seismic operations with the airgun array during approximately 2,140 km (1,330 mi) of transect lines in the eastern Mediterranean Sea.
NMFS has developed an alternate approach that appropriately includes a time component to calculate the take estimates for the proposed survey. In order to estimate the potential number of instances that marine mammals could be exposed to airgun sounds above the 160-dB Level B harassment threshold and the 180-dB Level A harassment thresholds, NMFS used the following approach for species with density estimates:
(1) Calculate the total area that the
(2) Multiply the daily ensonified area above the 160-dB Level B harassment threshold by the species' density to derive the predicted number of instances of exposures to received levels greater than or equal to 160-dB re: 1 μPa on a given day;
(3) Multiply that product (
(4) Multiply the daily ensonified area by each species-specific density to derive the predicted number of instances of exposures to received levels greater than or equal to 180-dB re: 1 μPa for cetaceans on a given day; and (
(5) Multiply that product by the number of survey days that includes a 25 percent contingency (
In many cases, this estimate of instances of exposures is likely an overestimate of the number of individuals that are taken, because it assumes 100 percent turnover in the area every day, (
For humpback whale and minke whale, the applicant requested 116 and 1,052 Level B takes for those species, respectively to account for uncertainty in the likelihood of encountering those species during the proposed survey. For these two species which are considered as visitor and vagrant respectively, NMFS believes that it is reasonable to use the average (mean) group size (weighted by effort and rounded up) from the AMMAPS surveys for humpback whale (3) and minke whale (2) and multiply those estimates by 20 days to derive a more reasonable estimate of take. Thus, NMFS proposes a take estimate of 60 humpback whales and 40 minke whales to account for the unlikely possibility of an eruptive occurrence of these species within the proposed action area.
NMFS based the take estimates for rough-toothed dolphins (8), false killer whales (3), long-finned pilot whales (33) and harbor porpoise (1) on mean group size reported from encounter rates observed during visual and acoustic surveys in the Mediterranean Sea, 2003-2007 (Boisseau
For rarely sighted species such as the gray and Sei whale, NMFS used the mean group size reported in (Boisseau
NMFS based the take estimates for hooded seals (1) on stranding and sighting records for the western Mediterranean Sea (Bellido
Because adult female Mediterranean monk seals can travel up to 70 km (43 mi) (Adamantopoulou
To date, data is unavailable from any systematic survey on the presence of monk seal caves on Santorini Island (Pers. Comm. MOm, 2015). However, based on recent stranding information for one pup on Santorini Island, NMFS estimates that up to two individuals could be present on Santorini Island.
Lamont-Doherty did not estimate any additional take from sound sources other than airguns. NMFS does not expect the sound levels produced by the echosounder or sub-bottom profiler to exceed the sound levels produced by the airguns. Lamont-Doherty will not operate the multibeam echosounder and sub-bottom profiler during transits to and from the survey area, (
NMFS considers the probability for entanglement of marine mammals as low because of the vessel speed and the monitoring efforts onboard the survey vessel. Therefore, NMFS does not believe it is necessary to authorize additional takes for entanglement at this time.
The
There is no evidence that planned activities could result in serious injury or mortality within the specified geographic area for the requested proposed Authorization. The required mitigation and monitoring measures would minimize any potential risk for serious injury or mortality.
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 (
In making a negligible impact determination, NMFS considers:
• The number of anticipated injuries, serious injuries, or mortalities;
• The number, nature, and intensity, and duration of harassment; and
• The context in which the takes occur (
• The status of stock or species of marine mammals (
• Impacts on habitat affecting rates of recruitment/survival; and
• The effectiveness of monitoring and mitigation measures to reduce the number or severity of incidental take.
To avoid repetition, our analysis applies to all the species listed in Table 6, given that NMFS expects the anticipated effects of the seismic airguns to be similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat (
Given the required mitigation and related monitoring, NMFS does not anticipate that serious injury or mortality would occur as a result of Lamont-Doherty's proposed seismic survey in the eastern Mediterranean
NMFS' predicted estimates for Level A harassment take for bottlenose, striped, short-beaked common, and Risso's dolphins are overestimates of likely injury because NMFS has not quantitatively adjusted the estimate to account for either avoidance or effective mitigation. NMFS expects that the required visual and acoustic mitigation measures would minimize Level A take in those instances. Also, NMFS expects that some individuals would avoid the source at levels expected to result in injury. NMFS expects that Level A harassment is unlikely but includes the modeled information in this notice. Taking into account that interactions at the modeled level of take for Level A harassment are unlikely or minimal due to Lamont-Doherty implementing required mitigation and monitoring measures, the likely avoidance of animals to the sound source, and Lamont-Doherty's previous history of successfully implementing required mitigation measures, the quantified potential injuries in Table 6, if incurred, would be in the form of some lesser degree of permanent threshold shift and not total deafness or mortality.
Given that the Hellenic Republic Ministry of Environment, Energy and Climate Change conducted a larger scale seismic survey in the eastern Mediterranean Sea from mid-November 2012 to end of January 2013, the addition of the increased sound due to the
Of the marine mammal species under our jurisdiction that are known to occur or likely to occur in the study area, five of these species are listed as endangered under the ESA including: The fin, humpback, sei, and sperm whales and the Mediterranean monk seal. Population trends for the Mediterranean monk seal globally are variable with some sub populations decreasing and others remaining stable or even indicating slight increases. The western north Atlantic population of humpback whales is known to be increasing. The other marine mammal species that may be taken by harassment during Lamont-Doherty's seismic survey program are not listed as threatened or endangered under the ESA.
Potential impacts to marine mammal habitat were discussed previously in this document (see the “Anticipated Effects on Habitat” and Responses to Comments sections). Although some disturbance is possible to food sources of marine mammals, the impacts are anticipated to be minor enough as to not affect annual rates of recruitment or survival of marine mammals in the area. Based on the size of the eastern Mediterranean Sea where feeding by marine mammals occurs versus the localized area of the marine survey activities, any missed feeding opportunities in the direct project area will be minor based on the fact that other feeding areas exist elsewhere (Costa, 1993; New
Monk seals are more particular when selecting caves for breeding versus caves for resting (Gücü
During parturition, lactating females leave the maternity caves as soon as possible after birth in search of food. Based upon a few tagged individuals, lactating female Mediterranean monk seals generally dive in waters 40-60 m deep and have a maximum known dive depth of 180 m (CMS, 2005). Monk seals may focus on areas shallower (2-25 m deep) while foraging (CMS, 2005). Pups tend to remain in shallow, nearshore waters and gradually distribute further from natal caves into waters up to 40 m deep (CMS, 2005; Gazo, 1997; Gazo
NMFS expects that it is unlikely that mothers would remain within the cave because of their need to forage and feed their pups. The closest approach of the
Taking into account the required mitigation measures to delay the conduct of survey lines acquired around Anafi Island to avoid the densest part of the pupping season and the required mitigation measure to shut down the airguns any time a pinniped is detected by observers around the vessel, effects on Mediterranean monk seals are generally expected to be restricted to avoidance of a limited area around the survey operation and short-term changes in behavior, falling within the MMPA definition of “Level B harassment.” NMFS does not expect the animals to permanently abandon their caves, and any behaviors interrupted during the activity are expected to resume once the short-term activity ceases or moves away.
For reasons stated previously in this document and based on the following factors, Lamont-Doherty's specified activities are not likely to cause long-term behavioral disturbance, permanent threshold shift, or other non-auditory injury, serious injury, or death. They include:
• The anticipated impacts of Lamont-Doherty's survey activities on marine mammals are temporary behavioral changes due to avoidance of the area;
• The likelihood that, given sufficient notice through relatively slow ship speed, NMFS expects marine mammals to move away from a noise source that is annoying prior to its becoming potentially injurious;
• The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the operation of the airgun(s) to avoid acoustic harassment;
• NMFS also expects that the seismic survey would have no more than a temporary and minimal adverse effect on any fish or invertebrate species that serve as prey species for marine mammals, and therefore consider the potential impacts to marine mammal habitat minimal;
• The high likelihood that trained visual protected species observers would detect marine mammals at close proximity to the vessel.
Table 6 in this document outlines the number of requested Level A and Level B harassment takes that we anticipate as a result of these activities. NMFS anticipates that 22 marine mammal species could occur in the proposed action area.
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (
Required mitigation measures, such as shutdowns for pinnipeds, vessel speed, course alteration, and visual monitoring would be implemented to help reduce impacts to marine mammals. Therefore, the exposure of pinnipeds to sounds produced by this phase of Lamont-Doherty's seismic survey is not anticipated to have an adverse effect on annual rates of recruitment or survival on the Mediterranean monk seal population (see New
Based on the analysis herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS finds that Lamont-Doherty's proposed seismic survey would have a negligible impact on the affected marine mammal species or stocks.
As mentioned previously, NMFS estimates that Lamont-Doherty's activities could potentially affect, by Level B harassment, 22 species of marine mammals under our jurisdiction. NMFS estimates that Lamont-Doherty's activities could potentially affect, by Level A harassment, up to four species of marine mammals under our jurisdiction.
For each species, the numbers of take being proposed for authorization are small numbers relative to the population sizes: less than 14 percent for long-finned pilot whales, less than 11 percent of the regional population estimates of Mediterranean monk seals, and less than four percent or less for all other species. NMFS has provided the regional population and take estimates for the marine mammal species that may be taken by Level A and Level B harassment in Table 2 and Table 6 in this notice.
NMFS finds that the incidental take authorized in Table 6 for the activity would be small relative to the affected species or stocks. In addition, NMFS also considered the seasonal distribution and habitat use patterns of Mediterranean monk seals, which suggest that for much of the time only a small portion of the population will be accessible to impacts from Lamont-Doherty's activity. Therefore, NMFS determined that the numbers of animals likely to be taken are small.
For two species, when considering take that would occur in the entire action area (including the part within the territorial seas, in which the MMPA does not apply) the number of instances is 11.84 for short-beaked common dolphins and 13.75 percent for short-beaked common dolphins, respectively (Table 5). While these additional takes were not evaluated under the “small number” standard because we are not authorizing them, these total takes (which are overestimates because NMFS' take estimate methodology assumes new exposures every day), were still considered in in our negligible impact determination, which considered all of the effects of the
There are no relevant subsistence uses of marine mammals implicated by this action.
There are six marine mammal species listed as endangered under the Endangered Species Act that may occur in the proposed survey area. Under section 7 of the ESA, NSF initiated formal consultation with NMFS on the proposed seismic survey. NMFS (
In October, 2015, the Endangered Species Act Interagency Cooperation Division issued a Biological Opinion with an Incidental Take Statement to us and to the NSF which concluded that the issuance of the Authorization and the conduct of the seismic survey were not likely to jeopardize the continued existence of fin, humpback, sei, and sperm whales and the Mediterranean monk seal. The Biological Opinion also concluded that the issuance of the Authorization and the conduct of the seismic survey would not affect designated critical habitat for these species.
NSF has prepared an environmental analysis titled “
NMFS has issued an Incidental Harassment Authorization to Lamont-Doherty for the take of marine mammals, incidental to conducting a marine seismic survey in the Mediterranean Sea November 19 through December 31, 2015.
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice and request for applications.
ONMS is seeking applications for vacant seats for five of its 13 national marine sanctuary advisory councils (advisory councils). Vacant seats, including positions (
Applications are due by November 30, 2015.
Application kits are specific to each advisory council. As such, application kits must be obtained from and returned to the council-specific addresses noted below.
• Greater Farallones National Marine Sanctuary Advisory Council: Carolyn Gibson, Greater Farallones National Marine Sanctuary, 991 Marine Drive, The Presidio, San Francisco, CA 94129; (415) 561-6622 extension 306; email
• Hawaiian Islands Humpback Whale National Marine Sanctuary Advisory Council: Inouye Regional Center, ATTN: NOS/ONMS/Shannon Lyday, 1845 Wasp Blvd., Building 176, Honolulu, HI 96818; (808) 725-5905; email
• Monterey Bay National Marine Sanctuary Advisory Council: Nichole Rodriguez, Monterey Bay National Marine Sanctuary, 99 Pacific St. Building 455A, Monterey, CA; (831) 647-4206; email
• National Marine Sanctuary of American Samoa Advisory Council: Joseph Paulin, National Marine Sanctuary of American Samoa, Tauese P.F. Sunia Ocean Center, P.O. Box 4318, Pago Pago, AS 96799 (Utulei, American Samoa); (684) 633-6500; email
• Olympic Coast National Marine Sanctuary Advisory Council: Karlyn Langjahr, Olympic Coast National Marine Sanctuary, 115 East Railroad Ave., Suite 101, Port Angeles, WA 98362; (360) 457-6622 extension 31; email
For further information on a particular national marine sanctuary advisory council, please contact the individual identified in the Addresses section of this notice.
ONMS serves as the trustee for 14 marine protected areas encompassing more than 170,000 square miles of ocean and Great Lakes waters from the Hawaiian Islands to the Florida Keys, and from Lake Huron to American Samoa. National marine sanctuaries protect our Nation's most vital coastal and marine natural and cultural resources, and through active research, management, and public engagement, sustains healthy
The following is a list of the vacant seats, including positions (
16 U.S.C. Sections 1431,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of a revised incidental harassment authorization.
Notice is hereby given that we have revised an incidental harassment authorization (IHA) issued to The Narragansett Electric Company, doing business as National Grid (TNEC), to take marine mammals, by harassment, incidental to construction of the Block Island Transmission System (BITS). The project has been delayed and the effective dates revised accordingly.
This authorization is now effective from October 30, 2015, through October 29, 2016.
A copy of this revised IHA is available by writing to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.
An electronic copy of this revised IHA may be obtained by visiting the Internet at:
John Fiorentino, Office of Protected Resources, NMFS, (301) 427-8477.
On November 1, 2014, NMFS issued an IHA to Deepwater Wind Block Island Transmission, LLC (DWBIT) to take marine mammals, by Level B harassment, incidental to construction of the BITS, effective from November 1, 2014 through October 31, 2015 (79 FR 51314). On January 30, 2015, DWBIT sold the BITS, in its entirety, to The Narragansett Electric Company, doing business as National Grid (TNEC). We issued a revised IHA reflecting this change in the name of the holder on June 3, 2015, with the dates of effectiveness of the IHA, and all mitigation, monitoring, and reporting requirements, remaining unchanged. The BITS, a bi-directional submarine transmission cable, will interconnect Block Island to TNEC's existing distribution system in Narragansett, Rhode Island. In-water work associated with the project was expected to be completed within the one-year timeframe of the IHA (effective dates originally November 1, 2014 through October 31, 2015). The following specific aspects of the planned activities are likely to result in the take of marine mammals: Vibratory pile driving and the use of dynamically positioned (DP) vessel thrusters. Take, by Level B Harassment only, of individuals of nine species (Atlantic white-sided dolphin, short-beaked common dolphin, harbor porpoise, minke whale, fin whale, humpback whale, North Atlantic right whale, gray seal, and harbor seal) is anticipated to result from the specified activity.
TNEC plans to construct a bi-directional submarine transmission cable that will run from Block Island to the Rhode Island mainland. Construction of the marine portion of the BITS will involve three activities: Cable landfall construction on Block Island using a short-distance horizontal directional drill (HDD) from a temporary excavated trench box on Crescent Beach; cable landfall construction on Scarborough State Beach in Narragansett, Rhode Island using a long-distance HDD from a temporary offshore cofferdam; and installation of the submarine BITS cable. The BITS will interconnect Block Island to the existing Narragansett Electric Company National Grid distribution system on the Rhode Island mainland. Cable landfall construction may require the installation and removal of a temporary offshore cofferdam, which will involve vibratory pile driving. The generation of underwater noise from vibratory pile driving and the DP vessel thruster may result in the incidental take of small numbers of marine mammals.
Construction activities have been delayed for the project due to a construction schedule dependent upon receipt of all environmental permits and licenses, procurement and completion
The potential environmental impacts of the revision to the BITS IHA are within the scope of the environmental impacts analyzed in the EA. NMFS has determined that there are no substantial changes to the action and that there are no new direct, indirect, or cumulative effects to the human environment resulting from the revision to the IHA. Therefore, NMFS has determined that new or supplemental EAs or Environmental Impact Statements are unnecessary, and reaffirms the existing FONSI for this action.
In summary, no new information is available that would substantively affect our analyses under the MMPA, NEPA, or ESA. All mitigation, monitoring, and reporting measures described in our notice of issuance of the IHA remain in effect. The species for which take was authorized and the numbers of incidences of take authorized are unchanged.
As a result of the foregoing, we have revised the IHA issued to TNEC for construction of the BITS. The IHA is now effective from October 30, 2015, through October 29, 2016. With these revised dates, TNEC can perform the installation of the cofferdam and submarine cable intended to meet the Block Island Wind Farm operational deadline of December 2016.
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 Scallop
This meeting will be held on Thursday, November 19, 2015 at 9 a.m.
The meeting will be held at the Radisson Airport Hotel, 2081 Post Road, Warwick, RI 02886; telephone: (401) 739-3000; fax: (401) 732-9309.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Committee will review Amendment 19 alternatives, analyses, and public comments received to date and make final recommendations. Amendment 19 was developed to consider measures to better align fishery allocations with the start of the scallop fishing year. They will also review Framework 27 alternatives and analyses and make final recommendations. Framework 27 was developed to consider fishery allocations for fishing year 2016 and default measures for fishing year 2017. The Committee will review progress to date and potentially provide input on a future Council sponsored workshop related to concerns raised about inshore scallop fishing patterns. Finally, the Committee will review and potentially provide input on draft guidance prepared by NMFS related to the Magnuson Act requirement to evaluate limited access privilege programs within five years after adoption. Other business may be discussed if time permits.
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; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Groundfish Committee 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 Wednesday, November 18, 2015, at 9 a.m.
The meeting will be held at the Radisson Hotel Providence Airport, 2081 Post Road, Warwick, RI 02886; phone: (401) 739-3000; fax: (401) 732-9309.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The committee 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, and other management measures and draft impacts analysis. They will also review a presentation on the results from Northeast Fisheries Science Center's bioeconomic model for recreational fisheries in the Gulf of Maine. The committee also plans to consider recommendations from the Groundfish Advisory Panel, regarding FW 55 and 2016 Council priorities. They will also consider recommendations from the Recreational Advisory Panel (RAP), regarding FW 55, FY 2016 Gulf of Maine cod and Gulf of Maine haddock recreational measures, and 2016 Council priorities. The committee also plans to develop recommendations to the Council regarding preferred alternatives in FW 55, FY 2016 recreational measures, and 2016 Council priorities. Also on the agenda is to discuss GARFO's Recreational Implementation Plan, review RAP recommendations to the Committee, and develop recommendations to the Council. 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 this meeting. 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; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop
The meeting will be held on Wednesday, November 18, 2015, at 9 a.m.
The meeting will be held at the Radisson Airport Hotel, 2081 Post Road, Warwick, RI 02886; telephone: (401) 739-3000; fax: (401) 732-9309.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Advisory Panel will review Amendment 19 alternatives, analyses, and public comments received to date and make final recommendations. Amendment 19 was developed to consider measures to better align fishery allocations with the start of the scallop fishing year. The Advisory Panel will also review Framework 27 alternatives and analyses and make final recommendations. Framework 27 was developed to consider fishery allocations for fishing year 2016 and default measures for fishing year 2017. They will also review progress to date and potentially provide input on a future Council sponsored workshop related to concerns raised about inshore scallop fishing patterns. Finally, the Advisory Panel will review and potentially provide input on draft guidance prepared by NMFS related to the Magnuson Act requirement to evaluate limited access privilege programs within five years after adoption. Other business may be discussed, if time permits.
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
United States Patent and Trademark Office, Commerce.
Request for comments; reopening of comment period.
The United States Patent and Trademark Office (USPTO) is requesting comments on a proposed pilot program pertaining to the institution and conduct of the post grant administrative trials provided for in the Leahy-Smith America Invents Act (AIA), Public Law 112-29, 125 Stat. 284 (2011). The AIA provides for the following post grant administrative trials:
Comments must be sent by electronic mail message over the Internet addressed to:
Electronic comments submitted in plain text are preferred, but also may be submitted in ADOBE® portable document format or MICROSOFT WORD® format. The comments will be available for viewing via the USPTO's Internet Web site (
Scott R. Boalick, Vice Chief Administrative Patent Judge by telephone at (571) 272-9797.
The first petitions for AIA post grant administrative trials were filed on September 16, 2012. Since then, over 3,600 petitions have been filed, and over 1,500 trials have been instituted. The USPTO has thus far been able to meet the demands placed on its resources created by the unexpectedly heavy workload. The Patent Trial and Appeal Board (PTAB) has issued over 2,200 decisions on institution and over 450 final written decisions. In three-plus years, the PTAB has not missed one statutory or regulatory deadline. At the same time, the PTAB has reduced the backlog of
Notwithstanding the success-to-date, the USPTO is proactively looking for ways to enhance its operations for the benefit of its stakeholders and therefore is interested in exploring alternative approaches that might improve its efficiency in handling AIA post grant proceedings while being fair to both sides and continuing to provide high quality decisions. Based upon comments received from the public through public fora and formal requests, the agency is considering a pilot program to test changing how the institution phase of a post grant proceeding is handled.
Once trial is instituted, the AIA mandates that the resulting trial be conducted before a three-member panel of the PTAB. Generally, under current practice, the same panel of three APJs decides whether to institute and, if instituted, handles the remainder of the proceeding, much like how federal district court judges handle cases through motions to dismiss, summary judgment, and trial. But a three-judge panel of the PTAB is not required under the statute prior to institution, and the USPTO believes it is prudent to explore other potentially more efficient options, especially given that the number of petitions filed may continue to increase.
To date and currently, the agency has intended to meet the resource demands on the PTAB due to both AIA post grant proceedings and
Office of Postsecondary Education, Department of Education.
Notice.
The Secretary invites postsecondary institutions (institutions) that participate in the student financial assistance programs authorized under title IV of the Higher Education Act of 1965, as amended (HEA), to apply to participate in a new institution-based experiment under the Experimental Sites Initiative (ESI). Under the ESI, the Secretary has authority to grant waivers
Under this experiment, participating institutions will be provided a waiver of the specific statutory and regulatory provisions that prevent students who are enrolled in secondary school from receiving Federal Pell Grants for enrollment in title IV-eligible postsecondary programs. Details of the experiment are provided in the
Letters of interest to participate in the experiment described in this notice must be received by the Department no later than February 1, 2016 in order for the institution to ensure that it is considered for participation in the experiment. Institutions submitting letters that are received after February 1, 2016 may still be considered for participation, at the discretion of the Secretary.
Letters of interest must be submitted by electronic mail to the following email address:
Warren Farr, U.S. Department of Education, Federal Student Aid, 830 First Street NE., Washington, DC 20002. Telephone: (202) 377-4380 or by email at:
If you use a telecommunications device for the deaf or a text telephone, call the Federal Relay Service, toll free, at 1-800-877-8339.
Interested institutions must submit a letter of interest. Letters of interest must be submitted as a PDF attachment to an email message sent to the email address provided in the
The letter of interest must include the institution's official name and Department of Education Office of Postsecondary Education Identification (OPEID) number, as well as a mailing address, email address, FAX number, and telephone number of a contact person at the institution.
We are interested in information such as (1) a brief description of the proposed dual enrollment arrangement(s) between the institution and one or more public secondary schools or local educational agencies (LEAs) that the institution is considering for participation in the experiment; (2) how the arrangement would meet the requirements described in this notice; (3) if the institution has identified one or more public secondary schools that it will partner with under this experiment, identifying information for each public secondary school, and the school's LEA ; and (4) an estimate of the number of students who will be served under each proposed arrangement with one or a group of public secondary schools or LEAs.
Expanding opportunities for students to enroll and succeed in postsecondary education is vital to building a strong economy and middle class. However, there are numerous barriers preventing some students, particularly those from low-income families, from accessing and completing postsecondary education, such as cost and the lack of access to rigorous coursework and support services.
Dual enrollment, in which students concurrently enroll in postsecondary coursework while in secondary school, has emerged as a promising approach to expand access to postsecondary education. A growing body of research suggests that participation in dual enrollment can lead to improved academic outcomes, especially for students from low-income families and first-generation college students, or those who are otherwise underrepresented in postsecondary education.
Dual enrollment can also facilitate stronger connections between the secondary and postsecondary education sectors by leveraging existing tools that enable closer alignment between secondary schools and postsecondary institutions. For example, some postsecondary institutions have begun using college- and career-ready standards and assessments at the secondary school level as an indicator of academic preparedness for college-level coursework. Despite evidence that dual enrollment programs show promising results for increasing students' college participation and outcomes, cost can be a barrier: at nearly half of institutions with dual enrollment programs, most students pay out of pocket for tuition.
The objectives of this experiment are to learn about how Federal Pell Grant funding can expand opportunities for students from low-income backgrounds to participate in dual enrollment, explore how Pell Grant funding can expand access to rigorous coursework for high school students, and provide the Department with information regarding the number and characteristics of Pell-eligible students who would likely participate in dual enrollment programs.
For this experiment, the Department is particularly interested in dual enrollment arrangements that are aligned with postsecondary degrees and credentials in high-demand fields,
To evaluate the experiment, participating institutions will be required to collect, maintain, and report information about students receiving Federal Pell Grants under the experiment. This information may include: The number and characteristics of students enrolled in dual enrollment, the number of postsecondary credits the students have attempted and earned, the amount of Federal Pell Grant funding provided to each student, and indicators of academic progression and completion. In addition, participating institutions may be required to report information about the number and characteristics of low-income students who participated in dual enrollment prior to the experiment.
Participating institutions will be required to participate in annual surveys that collect information about the institution's dual enrollment arrangement(s) and any unforeseen challenges. This information may include the characteristics of the institution's dual enrollment arrangement (
The Department's evaluation will also include information reported by postsecondary institutions through the Department's systems regarding the enrollment, completion, and withdrawal of students who receive Pell Grant funds under the experiment.
From the institutions that submit letters of interest, the Secretary will select a limited number of institutions to participate in this experiment. When selecting institutions for participation in this experiment, the Secretary will consider evidence that demonstrates a strong record on student outcomes and in the administration of the title IV, HEA programs. The Secretary will also consider all information available about an institution including, but not limited to, information provided in an institution's letters of interest, evidence of programmatic compliance, completion rates, repayment rates, cohort default rates, financial responsibility ratios, evidence of credit transferability, and with regard to for-profit institutions, “90/10” ratios. The Department encourages applications from institutions of various types and controls, geographic locations, enrollment sizes, and title IV, HEA program participation levels, among other characteristics.
Participating institutions will have their Program Participation Agreement with the Secretary amended to reflect the specific statutory and regulatory provisions that the Secretary has waived for the experiment. Administration of the experiment is the responsibility of the entire institution. The institution will be required to acknowledge its commitment to properly administer the experiment.
Section 484(a)(1) of the HEA and 34 CFR 668.32(b) specifically prohibit a student from receiving title IV assistance, including Federal Pell Grants, if the student is, in addition to being enrolled in an eligible postsecondary educational program, also enrolled in secondary school. Under this experiment, the Secretary will waive the statutory and regulatory provisions that prevent a student who is enrolled in secondary school from receiving Federal Pell Grants for enrollment in a postsecondary educational program. The Secretary will also waive, for the students included in the dual enrollment experiment, the requirement that a student must have a high school diploma or its recognized equivalent in order to receive title IV aid.
The Secretary does not waive any dual enrollment participation requirements that participating institutions, public secondary schools, State Educational Agencies, or LEAs may already have.
Consistent with the waiver authority granted to the Secretary under section 487A(b) of the HEA, this experiment will examine the extent to which waiving the restrictions on providing Federal Pell Grants to secondary school students increases low-income student participation in dual enrollment. Under the experiment, the student and the postsecondary program in which the student enrolls must meet all other title IV eligibility requirements in order for the student to receive a Federal Pell Grant.
To participate in the experiment, the institution must have an arrangement with one or more LEAs or public secondary schools, as defined by the State in which the public secondary school is located, to permit public secondary school students to enroll in a title IV-eligible postsecondary program.
Under this experiment, the arrangement between the postsecondary educational institution and an LEA or public secondary school must:
• Require dually enrolled students to enroll in a title IV eligible postsecondary program as regular students, as defined by 34 CFR 600.2.
• Provide that students will receive Federal Pell Grants only for coursework that applies towards completion of a postsecondary credential at the participating institution. Such coursework may, but is not required to, apply towards a secondary school diploma. Participating institutions should ensure that dual enrollment arrangements do not impede participating students' academic progress and persistence in secondary school.
• Offer students the opportunity to earn the equivalent of at least 12 postsecondary credit hours while also enrolled in a public secondary school.
• Ensure that students are adequately prepared academically for postsecondary-level coursework. This may include ensuring that students meet any relevant requirements that may apply for enrollment, such as grade point average, placement tests, and course prerequisite requirements.
• Prohibit the use of Federal Pell Grant funds for remedial coursework taken by students who are enrolled in a public secondary school.
• Provide appropriate student support services, such as academic tutoring, high school to college transition support, guidance counseling, or other comparable services designed to increase student preparation for and success in postsecondary education. These services may be provided by the public secondary school, the institution, the LEA, or by another entity.
• Provide assistance completing the Free Application for Federal Student Aid (FAFSA). This assistance may be provided by the public secondary
To the extent that the institution has information about potential restrictions on the transferability of the credits that secondary students may receive under the institution's dual enrollment arrangement, the institution must disclose this information to students and their families prior to the student's participation in the dual enrollment experiment.
Participating institutions must ensure that after all Federal Pell Grants, State, local, institutional aid, or other resources have been applied to student charges, students are not responsible for any remaining institutional charges as a result of enrolling in the postsecondary program as part of the institution's dual enrollment arrangement under the experiment.
Federal Pell Grants made available to students to enroll in participating institutions through this experiment must not supplant public and institutional sources of funding for an institution's dual enrollment arrangement(s). To verify and monitor this requirement, participating institutions will be required to annually submit to the Department information about the total cost of operating the dual enrollment arrangement and the sources of funding for the arrangement. The Secretary may remove an institution from the experiment if the Secretary determines that Federal Pell Grant funds have been used to supplant existing funding sources.
Institutions selected for this experiment will be exempt from the following statutory and regulatory provisions:
• Section 484(a)(1) of the HEA and 34 CFR 668.32(b), to the extent that the statute and regulations prohibit a student who is enrolled in a public secondary school from receiving funds under the Federal Pell Grant program;
• Section 484(d) of the HEA and 34 CFR 668.32(e), to the extent that the statute and regulations require that a student have a high school diploma, or its recognized equivalent, to be eligible for Federal Pell Grant funds.
All other provisions and regulations of the title IV, HEA programs will apply to institutions participating in this experiment.
You may also access documents of the Department published in the
20 U.S.C. 1094a(b).
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following land acquisition reports:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before December 3, 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 contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the
To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page <
As required by the Privacy Act of 1974, as amended, 5 U.S.C. 552a, the Commission also published a SORN, FCC/WCB-1 “Lifeline Program” in the
Also, respondents may request materials or information submitted to the Commission or to the Universal Service Administrative Company (USAC or Administrator) be withheld from public inspection under 47 CFR 0.459 of the FCC's rules. We note that USAC must preserve the confidentiality of all data obtained from respondents; must not use the data except for purposes of administering the universal service programs; and must not disclose data in company-specific form unless directed to do so by the Commission.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than November 18, 2015.
A. Federal Reserve Bank of Atlanta (Chapelle Davis, Assistant Vice President) 1000 Peachtree Street NE., Atlanta, Georgia 30309:
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than November 27, 2015.
A. Federal Reserve Bank of Cleveland (Nadine Wallman, Vice President) 1455 East Sixth Street, Cleveland, Ohio 44101-2566:
1.
B. Federal Reserve Bank of Richmond (Adam M. Drimer, Assistant Vice President) 701 East Byrd Street, Richmond, Virginia 23261-4528:
1.
C. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690-1414:
1.
D. Federal Reserve Bank of St. Louis (Yvonne Sparks, Community Development Officer) P.O. Box 442, St. Louis, Missouri 63166-2034:
1.
E. Federal Reserve Bank of Dallas (Robert L. Triplett III, Senior Vice President) 2200 North Pearl Street, Dallas, Texas 75201-2272:
1.
Federal Trade Commission.
Proposed consent agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before November 27, 2015.
Interested parties may file a comment at
Michael Turner (202-326-3649). Bureau of Competition, 600 Pennsylvania Avenue NW., Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for October 27, 2015), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before November 27, 2015. Write “Step N Grip, LLC—Consent Agreement; File No. 151 0181” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Step N Grip, LLC—Consent Agreement; File No. 151 0181” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an agreement containing consent order (“Consent Agreement”) from Step N Grip, LLC (“Step N Grip”). The Commission's Complaint alleges that Step N Grip violated Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45, by inviting a competitor in the sale of certain rug devices to set and raise prices.
Under the terms of the proposed Consent Agreement, Step N Grip is required to cease and desist from communicating with its competitors about prices. It is also barred from entering into, participating in, inviting, or soliciting an agreement with any competitor to divide markets, to allocate customers, or to fix prices.
The Consent Agreement has been placed on the public record for 30 days for receipt of comments from interested members of the public. Comments received during this period will become part of the public record. After 30 days, the Commission will review the Consent Agreement again and the comments received, and will decide whether it should withdraw from the Consent Agreement or make final the accompanying Decision and Order (“Proposed Order”).
The purpose of this Analysis to Aid Public Comment is to invite and facilitate public comment. It is not intended to constitute an official interpretation of the proposed Consent Agreement and the accompanying Proposed Order or in any way to modify their terms.
The allegations of the Complaint are summarized below:
Step N Grip markets and sells a device called NeverCurl that is intended to keep the corners of a rug from curling. Step N Grip sells NeverCurl primarily through Amazon.com; Step N Grip also sells NeverCurl through its own Web site.
Step N Grip's closest competitor in the sale of such rug devices is Competitor A, a company that also sells its product on Amazon.com. For several months prior to June 1, 2015, Step N Grip generally priced NeverCurl at $13.95 per package, while Competitor A priced its product at $16.99 per package.
On June 1, 2015, Competitor A lowered its price on Amazon.com to $13.49 in an effort to compete more aggressively with Step N Grip. In response, Step N Grip lowered its price on Amazon.com to $12.95.
On June 7, 2015, Competitor A lowered its price on Amazon.com to $11.95 in response to Step N Grip. That same day, Step N Grip lowered its price to $11.95 on Amazon.com and sent an email message to Competitor A. The communication, in its entirety, read: “We both sell at $12.95? Or, $11.95?”
Competitor A reported the communication to the FTC.
Step N Grip's June 7 message to Competitor A is plainly an attempt to arrange an agreement between the two companies setting and increasing the price of their competing products. It is an invitation to collude. The Commission has long held that invitations to collude violate Section 5 of the FTC Act, and this is unaltered by the Commission's recent Statement on Section 5.
In a recent statement, the Commission explained that unfair methods of competition under Section 5 “must cause, or be likely to cause, harm to competition or the competitive process, taking into account any associated cognizable efficiencies and business justifications.”
An invitation to collude is “potentially harmful and . . . serves no legitimate business purpose.”
The Commission has long held that an invitation to collude violates Section 5 of the FTC Act even where there is no proof that the competitor accepted the invitation.
The Proposed Order contains the following substantive provisions:
Section II, Paragraph A of the Proposed Order enjoins Step N Grip from communicating with its competitors about rates or prices, with a proviso permitting public posting of rates.
Section II, Paragraph B prohibits Step N Grip from entering into, participating in, maintaining, organizing, implementing, enforcing, inviting, offering, or soliciting an agreement with any competitor to divide markets, to allocate customers, or to fix prices.
Section II, Paragraph C bars Step N Grip from urging any competitor to raise, fix or maintain its price or rate levels or to limit or reduce service terms or levels.
Section II, Paragraph D forbids Step N Grip from instructing or encouraging a distributor or seller to engage in the conduct proscribed in Section II, Paragraphs A through C.
Sections III-VI of the Proposed Order impose certain standard reporting and compliance requirements on Step N Grip.
The Proposed Order will expire in 20 years.
By direction of the Commission.
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination—on the dates indicated—of the waiting period provided by law and the premerger notification rules. The listing for each transaction includes the transaction number and the parties to the transaction. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
Theresa Kingsberry, Program Support Specialist, Federal Trade Commission Premerger Notification Office, Bureau of Competition, Room CC-5301, Washington, DC 20024, (202) 326-3100.
By direction of the Commission.
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) 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; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) 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,
To request additional information on the proposed project or to obtain a copy of the information collection plan and
Identification of Behavioral and Clinical Predictors of Early HIV Infection (Project DETECT)—New—National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
CDC provides guidelines for HIV testing and diagnosis for the United States, as well as technical guidance for its grantees. CDC will use the HIV testing data collected for this project to update these guidance documents to reflect the latest available testing technologies, their performance characteristics, and considerations regarding their use. Specifically, CDC will describe the information on behavioral and clinical characteristics of persons with early infection to help HIV test providers (including CDC grantees) choose which HIV tests to use and target tests appropriately to persons at different levels of risk. This information will primarily be disseminated through guidance documents (and articles in peer-reviewed journals).
The primary study population will be persons at high risk for or diagnosed with HIV infection, many of whom will be men who have sex with men (MSM) because the majority of new HIV infections occur each year among this population. The goals of the project are to: (1) Characterize the performance of new HIV tests for detecting established and early HIV infection at the point of care, relative to each other and to currently used gold standard, non-POC tests, and (2) identify behavioral and clinical predictors of early HIV infection.
Project DETECT will enroll 1,667 persons annually at the primary study site clinic in Seattle, and an additional 200 persons will be enrolled from other clinics in the greater Seattle area. The study will be conducted in two phases.
The follow-up schedule will consist of up to nine visits scheduled at regular intervals over a 70-day period. At each follow-up visit, participants will be tested with the new HIV tests and additional oral fluid and blood specimens will also be collected for storage and use in future HIV test evaluations at CDC. Participants will be followed up only to the point at which all their test results become concordant. At each time point, participants will be asked to complete the Phase 2 HIV Symptom and Care survey that collects information on symptoms associated with early HIV infection as well as access to HIV care and treatment since the last Phase 2 visit. When all tests become concordant (
All data for the proposed information collection will be collected via an electronic Computer Assisted Self-Interview (CASI) survey. Participants will complete the surveys on an encrypted computer, with the exception of the Phase 2 Symptom and Care survey, which will be administered by a research assistant and then electronically entered into the CASI system. Data to be collected via CASI include questions on socio-demographics, medical care, HIV testing, pre-exposure prophylaxis, antiretroviral treatment, sexually transmitted disease (STD) history, symptoms of early HIV infection, substance use and sexual behavior.
Data from the surveys will be merged with HIV test results and relevant clinical data using the unique ID number. Data will be stored on a secure server managed by the University of Washington Department of Medicine IT Services. The participation of respondents is voluntary. There is no cost to the respondents other than their time. The total annual burden hours are 2,110.
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) 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; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) 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,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
BioSense (OMB Control No. 0920-0824, Expiration 11/30/2015)—Revision—Center for Surveillance, Epidemiology and Laboratory Services (CSELS), Centers for Disease Control and Prevention (CDC).
The BioSense Program was created by congressional mandate as part of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 and was launched by the CDC in 2003. The original BioSense Program (BioSense 1.0) was intended to serve as a national level public health syndromic surveillance system for early detection and rapid assessment of potential bioterrorism-related illness and injury. In 2009, CDC began planning and developing the computing cloud-based BioSense 2.0 Platform. This cloud-based system would offer secure storage space for data and data sharing capacity for each state and local health department. Since August 2012, when CDC submitted a request to OMB for approval of a revision to the BioSense information collection request, HHS published new guidance on Meaningful Use of Electronic Health Records for syndromic surveillance. During this time, CDC also initiated its new CDC Surveillance Strategy. These actions provided new guidance for improvements to the BioSense Program, which resulted in new requirements for data submission to the BioSense Platform and new requests specified below.
CDC requests a three-year Revision approval for BioSense. This Revision includes new requests for approval to: (1) Change the title of the information collection request from BioSense to the National Syndromic Surveillance Program (NSSP); (2) receive data from additional state, local, and territorial health departments; (3) receive from state, local, and territorial health departments syndromic surveillance data submitted to those health departments from urgent care, ambulatory care and hospital inpatient settings (in addition to data from hospital emergency departments, included in the previously approved information collection request); and (4) receive from state, local, and territorial health departments additional syndromic surveillance data elements.
The total estimated number of burden hours has decreased since the previously approved information collection request because we inadvertently included estimates for the Department of Defense, Department of Veterans Affairs, and the two organizations that provide pharmacy data. We only included estimates for state, local, and territorial public health jurisdictions and the private sector laboratory company that provides laboratory data free of charge to CDC in this information collection request. There is no burden for the private sector laboratory company for recruitment, registration, and healthcare data collection. The private sector laboratory company chose their sharing permissions when they registered to use the system. The estimated annual burden is 39 hours.
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) 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; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) 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,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Epidemiologic Study of Health Effects Associated With Low Pressure Events in Drinking Water Distribution Systems (OMB Control No. 0920-0960, expiration 3/31/2016)—Extension—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
In the United States (U.S.), drinking water distribution systems are designed to deliver safe, pressurized drinking water to our homes, hospitals, schools and businesses. However, the water distribution infrastructure is 50-100 years old in much of the U.S. and an estimated 240,000 water main breaks occur each year. Failures in the distribution system such as water main breaks, cross-connections, back-flow, and pressure fluctuations can result in potential intrusion of microbes and other contaminants that can cause health effects, including acute gastrointestinal and respiratory illness.
Approximately 200 million cases of acute gastrointestinal illness occur in the U.S. each year, but we lack reliable data to assess how many of these cases are associated with drinking water. Further, data are even more limited on the human health risks associated with exposure to drinking water during and after the occurrence of low pressure events (such as water main breaks) in drinking water distribution systems. A study conducted in Norway from 2003-2004 found that people exposed to low pressure events in the water distribution system had a higher risk for gastrointestinal illness. A similar study is needed in the United States.
The purpose of this data collection is to conduct an epidemiologic study in the U.S. to assess whether individuals exposed to low pressure events in the water distribution system are at an increased risk for acute gastrointestinal or respiratory illness. This study would be, to our knowledge, the first U.S. study to systematically examine the association between low pressure events and acute gastrointestinal and respiratory illnesses. Study findings will inform the Environmental Protection Agency (EPA), CDC, and other drinking water stakeholders of the potential health risks associated with low pressure events in drinking water distribution systems and whether additional measures (
We will conduct a cohort study among households that receive water from six water utilities across the U.S. The water systems will be geographically diverse and will include both chlorinated and chloraminated systems. These water utilities will provide information about low pressure events that occur during the study period using a standardized form (approximately 11 events per utility). Utilities will provide address listings of households in areas exposed to the low pressure event and comparable households in an unexposed area to CDC staff, who will randomly select participants and send them an introductory letter and questionnaire. Consenting household respondents will be asked about symptoms and duration of any recent gastrointestinal or respiratory illness, tap water consumption, and other exposures including international travel, daycare attendance or employment, animal contacts, and recreational water exposures. Study participants may choose between two methods of survey response: A mail-in paper survey and a Web-based survey.
Participation in this study will be voluntary. No financial compensation will be provided to study participants. The study duration is anticipated to last 30 months. An estimated 6,750 individuals will be contacted and we anticipate 4,050 utility customers (18 years of age or older) will consent to participate in this study. The total estimated annualized hours associated with this study is expected to be 548.
There are no costs to respondents other than their time.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a guidance for industry entitled “Human Immunodeficiency Virus-1 Infection: Developing Antiretroviral Drugs for Treatment.” The purpose of this guidance is to assist sponsors in all phases of development of antiretroviral drugs and therapeutic biologic products for the treatment of HIV-1 infection.
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 Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Jeffrey Murray, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 6360, Silver Spring, MD 20993-0002, 301-796-1500.
FDA is announcing the availability of a guidance for industry entitled “Human Immunodeficiency Virus-1 Infection: Developing Antiretroviral Drugs for Treatment.” This guidance assists sponsors in all phases of drug development including nonclinical development, early phases of clinical development, phase 3 protocol designs, and endpoints for the treatment of HIV. This guidance specifically addresses HIV drug development in populations in need of additional HIV drugs for maintaining HIV suppression including trial designs for heavily treatment-experienced patients (multiple-drug-resistant patients with few remaining options); use of early virologic assessments as primary endpoints in trials evaluating antiretroviral drugs in heavily treatment-experienced patients; recommended trial durations based on medical need; and risk-benefit in the targeted patient population.
This guidance finalizes the draft guidance of the same name published in the
The public comments received on the draft guidance have been considered and the guidance has been revised to: (1) Clarify definitions of treatment-naïve and treatment-experienced patient categories with respect to both drug susceptibility and clinical history; (2) add recommendations for trial designs that investigate switching treatment regimens in patients who are suppressed on current therapy; and (3) briefly discuss recommendations for labeling claims for safety endpoints.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on developing antiretroviral drugs for the treatment of HIV infection. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
This guidance refers to previously approved collections of information that are subject to review by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 312 have been approved under OMB control number 0910-0014, the collections of information in 21 CFR part 314 have been approved under OMB control number 0910-0001, and the collections of information referred to in the guidance for industry entitled “Establishment and Operation of Clinical Trial Data Monitoring Committees” have been approved under OMB control number 0910-0581.
Persons with access to the Internet may obtain the guidance at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (the PRA).
Fax written comments on the collection of information by December 3, 2015.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or emailed to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
FDA regulations require the distribution of patient labeling, called Medication Guides, for certain prescription human drug and biological products used primarily on an outpatient basis that pose a serious and significant public health concern requiring distribution of FDA approved patient medication information. These Medication Guides inform patients about the most important information they should know about these products in order to use them safely and effectively. Included is information such as the drug's approved uses, contraindications, adverse drug reactions, and cautions for specific populations, with a focus on why the particular product requires a Medication Guide. These regulations are intended to improve the public health by providing information necessary for patients to use certain medication safely and effectively.
The regulations contain the following reporting requirements that are subject to the PRA:
• 21 CFR 208.20—Applicants must submit draft Medication Guides for FDA approval according to the prescribed content and format.
• 21 CFR 314.70(b)(3)(ii) and 21 CFR 601.12(f)—Application holders must submit changes to Medication Guides to FDA for prior approval as supplements to their applications.
• 21 CFR 208.24(c)—Each distributor or packer that receives Medication Guides, or the means to produce Medication Guides, from a manufacturer under paragraph (b) of this section shall provide those Medication Guides to each authorized dispenser to whom it ships a container of drug product.
• 21 CFR 208.24(e)—Each authorized dispenser of a prescription drug product for which a Medication Guide is required, when dispensing the product to a patient or to a patient's agent, must provide a Medication Guide directly to each patient unless an exemption applies under 21 CFR 208.26.
• 21 CFR 208.26(a)—Requests may be submitted for exemption or deferral from particular Medication Guide content or format requirements.
In the
One comment requested clarification of FDA's burden estimates for 21 CFR 208.24(c)—how the burden estimates were calculated and clarification of the definitions of “respondent,” “average burden per respondent,” and “disclosures per respondent”. The comment asked whether “respondent” means the total number of individual warehouses owned and operated by all wholesale distribution companies or the number of wholesale distribution companies (which have multiple warehouses). The comment asked whether “disclosures per respondent” includes every instance that a Medication Guide is provided with any drug in 1 year or if it means the number of different types of drugs that a distributor would sell in a year for which a manufacturer was required to develop and supply a Medication Guide. The comment said that the number of “disclosures per respondent” would vary greatly depending on whether the word “respondent” means individual warehouses or wholesale distribution companies.
Concerning the burden hour estimates, the comment asked whether 1.25 hours (average burden per disclosure) includes the varying ways that wholesale distributors receive and distribute Medication Guides with shipments. The comment said that Medication Guides are provided to wholesale distributors from the manufacturer by multiple methods: For example, they are sometimes included with the package insert alone, provided in the package with the drug, or as loose leaf sheet(s) of paper and bulk-shipped to the wholesale distributor as a separate shipment or placed within the container in which the prescription product is shipped to the wholesale distributor. The comment said that if the Medication Guide is included on tear-off sheets or as loose-leaf paper, wholesale distributors would be responsible for coordinating the movement of those papers, taking significantly more time.
FDA Response: FDA has used, in part, information previously provided by stakeholders to determine the burden estimates. The 191 respondents under 21 CFR 208.24(c) in table 2 refers to the number of distribution centers. The 1.25 hour estimate for the “average burden per respondent” includes considerations such as the burden to receive, process, copy, store, select, and ship Medication Guides. The burden is an average estimate to address the various scenarios for distributing Medication Guides including electronically and in paper format. The “disclosures per respondent” refers to the number of instances Medication Guides are provided to distributors in a format that is physically separate from the drug product and must be handled and processed separately. Because the comment did not indicate if the calculations were overestimated or underestimated, we continue to use 191 for the number of respondents, 9,000 for the number of disclosures per respondent, and 1.25 hours as the average burden per disclosure.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Guidance for Industry and Food and Drug Administration Staff—Class II Special Controls Automated Blood Cell Separator Device Operating by Centrifugal or Filtration Separation Principle” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
On June 29, 2015, the Agency submitted a proposed collection of information entitled “Guidance for Industry and Food and Drug Administration Staff—Class II Special Controls Automated Blood Cell Separator Device Operating by Centrifugal or Filtration Separation Principle” to OMB for review and clearance under 44 U.S.C. 3507. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has now approved the information collection and has assigned OMB control number 0910-0594. The approval expires on September 30, 2018. A copy of the supporting statement for this information collection is available on the Internet at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Survey on Occurrence of Foodborne Illness Risk Factors in Selected Retail and Foodservice Facility Types” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
On August 18, 2015, the Agency submitted a proposed collection of information entitled “Survey on Occurrence of Foodborne Illness Risk Factors in Selected Retail and Foodservice Facility Types” to OMB for review and clearance under 44 U.S.C. 3507. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has now approved the information collection and has assigned OMB control number 0910-0744. The approval expires on September 30, 2018. A copy of the supporting statement for this information collection is available on the Internet at
Food and Drug Administration, HHS.
Notice of public webinar; request for comments.
The Food and Drug Administration (FDA or Agency) is announcing a regional public webinar entitled “Health Canada and U.S. Food and Drug Administration Joint Public Consultation on International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use (ICH).” The goal of this webinar is to provide information and receive comments on the ICH, as well as the upcoming ICH meetings in Jacksonville, FL, in December 2015. The topics to be discussed are the topics for discussion at the forthcoming ICH Management Steering Meeting. The purpose of the webinar is to solicit public input prior to the next Steering Committee and Expert Working Group meetings in Jacksonville, FL, scheduled for December 5 to 10, 2015, at which the discussion of the topics underway and ICH reforms will continue.
The public webinar will be held on November 12, 2015, from 1 p.m. to 4 p.m., Eastern Standard Time. Registration to attend the webinar and requests for online presentations must be received by November 6, 2015. See the
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
Amanda Roache, Food and Drug Administration, Center for Drug Evaluation and Research, Office of Strategic Programs, 10903 New Hampshire Ave., Bldg. 51, Rm. 1128, Silver Spring, MD 20993, 301-796-4548, email:
The ICH was established in 1990 as a joint regulatory/industry project to improve, through harmonization, the efficiency of the process for developing and registering new medicinal products in Europe, Japan, and the United States without compromising the regulatory obligations of safety and effectiveness. In recent years, many important initiatives have been undertaken by regulatory authorities and industry associations to promote international harmonization of regulatory requirements. FDA has participated in many meetings designed to enhance harmonization and is committed to seeking scientifically based harmonized technical procedures for pharmaceutical development. One of the goals of harmonization is to identify and then reduce differences in technical requirements for medical product development among regulatory Agencies. ICH was organized to provide an opportunity for harmonization initiatives to be developed with input from both regulatory and industry representatives. Members of the ICH Steering Committee include the European Union; the European Federation of Pharmaceutical Industries Associations; the Japanese Ministry of Health, Labor, and Welfare; the Japanese Pharmaceutical Manufacturers Association; FDA; the Pharmaceutical Research and Manufacturers of America; Health Canada; Swissmedic; and the World Health Organization (as an Observer). The ICH process has achieved significant harmonization of the technical requirements for the approval of pharmaceuticals for human use in the ICH regions over the past two decades. The current ICH process and structure can be found at the following Web site:
If you wish to attend the webinar, submit a request in writing via email to
Interested persons may present data, information, or views orally or in writing on issues pending at the public webinar. Online presentations made by the public will be scheduled between approximately 3:30 p.m. and 4 p.m. Time allotted for online presentations may be limited to 5 minutes. Those desiring to make online presentations should notify Amanda Roache (see
Please be advised that as soon as a webinar transcript is available, FDA will post it at
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Rakesh Raghuwanshi at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Section 30.18 of the Department of Health and Human Services' claims collection regulations (45 CFR part 30) provides that the Secretary shall charge an annual rate of interest, which is determined and fixed by the Secretary of the Treasury after considering private consumer rates of interest on the date that the Department of Health and Human Services becomes entitled to recovery. The rate cannot be lower than the Department of Treasury's current value of funds rate or the applicable rate determined from the “Schedule of Certified Interest Rates with Range of Maturities” unless the Secretary waives interest in whole or part, or a different rate is prescribed by statute, contract, or repayment agreement. The Secretary of the Treasury may revise this rate quarterly. The Department of Health and Human Services publishes this rate in the
The current rate of 10.0%, as fixed by the Secretary of the Treasury, is certified for the quarter ended September 30, 2015. This rate is based on the Interest Rates for Specific Legislation, “National Health Services Corps Scholarship Program (42 U.S.C. 254o(b)(1)(A))” and “National Research Service Award Program (42 U.S.C. 288(c)(4)(B)).” This interest rate will be applied to overdue debt until the Department of Health and Human Services publishes a revision.
Office of the Secretary (OS), Department of Health and Human Services (HHS).
Notice to alter two Privacy Act systems of records.
In accordance with the requirements of the Privacy Act of 1974, as amended (5 U.S.C. 552a), the Department of Health and Human Services (HHS) is updating an existing, department-wide system of records, System No. 09-90-0024, titled “Unified Financial Management System” (UFMS), which covers accounts payable records and accounts receivable records retrieved by personal identifier; and is transferring one routine use (pertaining to administrative wage garnishment) to a related system of records, System No. 09-40-0012, titled “Debt Management and Collection System.”
System No. 09-90-0024, “Unified Financial Management System,” was established prior to 1979 (see 44 FR 58149). The System of Records Notice (SORN) was last revised and republished in full in 2005 (see 70 FR 38145). This Notice proposes to change the name to “HHS Financial Management System Records;” update records locations and System Manager contact information; narrow the scope of the SORN by excluding certain descriptions and routine uses pertaining to collection of overdue and delinquent federal debts, which are currently covered in, or are now proposed to be covered in, the SORN for System No. 09-40-0012 “Debt Management and Collection System;” add several new routine uses, combine and revise certain existing routine uses, and delete unnecessary routine uses; and update the safeguards, record retention procedures, and record source descriptions. The changes are more fully explained in the
The altered system notice is effective immediately, with the exception of the routine uses that are proposed to be added, revised, or transferred. The new, revised, and transferred routine uses will be effective 30 days after publication, unless HHS receives comments that warrant a revision to this Notice.
Send public comments by mail to: Sara Hall, Chief Information Security Officer, 200 Independence Ave. SW., Room #326E, Washington, DC 20201, or by email to:
Sara Hall, Chief Information Security Officer, 200 Independence Ave. SW., Room #326E, Washington, DC 20201,
Since the last republication of the Unified Financial Management System SORN in 2005, the System Manager contact information has changed, and some of the records locations have changed. In reviewing the SORN for other updates to make, HHS determined that the name and scope should be changed to reflect that the system of records is not limited to records associated with a particular information technology (IT) system known as the Unified Financial Management System (UFMS), because HHS uses multiple IT systems for financial management purposes, the IT system names may change, and certain supporting records are not maintained in the IT systems, but are maintained in hard copy only. The system of records currently excludes salary and wage payment records processed in a payroll system; HHS determined that certain descriptions and routine uses pertaining to collection of overdue and delinquent federal debts should also be excluded from this SORN, to avoid (to the extent possible) duplicating System No. 09-40-0012 “Debt Management and Collection System.” (System No. 09-40-0012 is a subset of this system of records; it covers records pertaining to debt collection functions, and also utilizes the central accounting system known as UFMS.) The safeguards, record retention procedures, and record source descriptions have also been updated.
The remaining changes affect the routine uses:
• Routine uses 3 and 13 through 17 are being added; they will authorize disclosures pertaining to law violations, private relief legislation, audits, insurance and similar matters, cybersecurity monitoring, and security breach response.
• The following routine uses are being revised:
○ Routine use 1, authorizing disclosures to Treasury to effect payments, has been revised to include “verifying payment eligibility,” and to authorize disclosures under any future “Do Not Pay” computer matching agreement entered into with Treasury that requires data from this system of records.
○ The word “written” has been added to routine use 2 (pertaining to disclosures to Members of Congress).
○ Former routine uses 4 and 5 (pertaining to disclosures to obtain information relevant to an HHS decision and to provide information relevant to another agency's decision) are now combined at number 5.
○ The litigation routine use (formerly 8, now 7) has been reworded.
○ Former routine uses 16 and 17 (pertaining to disclosures to contractors and other individuals not having the status of agency employees) are now combined at number 12.
• The following routine uses are being deleted:
○ The routine use formerly numbered as 3 (pertaining to disclosures to the U.S. Department of Justice to obtain its advice regarding information required to be provided under the Freedom of Information Act) has been deleted as unnecessary, because HHS' Office of General Counsel provides such advice with respect to specific records, and because another routine use authorizes disclosures to DOJ in the event of litigation.
○ The routine uses formerly numbered as 11, 12, and 13, the last portion of the routine use formerly numbered as 14 (now 10), and the routine uses formerly numbered as 19, 20, and 21 have been deleted as duplicating another UFMS routine use, or as duplicating debt collection-related routine uses previously published for System No. 09-40-0012, “Debt Management and Collection System” (Debt). Specifically:
UFMS routine use 11a. through c. duplicated Debt routine use 11;
UFMS routine use 11d. duplicated Debt routine uses 5, 7, and 10;
UFMS routine use 11e. duplicated Debt routine use 10;
UFMS routine use 11f. duplicated Debt routine use 3;
UFMS routine use 11g. duplicated Debt routine use 16;
UFMS routine use 12 duplicated Debt routine use 10;
UFMS routine use 13 duplicated Debt routine use “Special Disclosures to Consumer Reporting Agencies;”
the last portion of UFMS routine use 14 duplicated Debt routine use 13;
UFMS routine use 19 duplicated the UFMS routine use “Disclosure to Consumer Reporting Agencies”;
UFMS routine use 20 duplicated Debt routine use 14; and
UFMS routine use 21 duplicated Debt routine use 15.
○ The routine use formerly numbered as 18, pertaining to computer matching of a list of debtors against a list of federal employees, has been deleted because such matching programs are not currently conducted or contemplated.
○ The routine use formerly numbered as 22, pertaining to administrative wage garnishment, has been deleted because it is being transferred to System No. 09-40-0012 as routine use 18.
The routine use pertaining to administrative wage garnishment, appearing in the current UFMS SORN as number 22, is being deleted from the UFMS SORN and included in revised form as routine uses 18 in the SORN previously published for System No. 09-40-0012, “Debt Management and Collection System.” The revised wording will more accurately describe the data elements disclosed to a debtor's employer for administrative wage garnishment purposes.
The Privacy Act (5 U.S.C. 552a) governs the means by which the U.S. Government collects, maintains, and uses information about individuals in a system of records. A “system of records” is a group of any records under the control of a federal agency from which information about an individual is retrieved by the individual's name or other personal identifier. The Privacy Act requires each agency to publish in the
The following routine use 18 is added to the System of Records Notice (SORN) for System No. 09-40-0012, titled “Debt Management and Collection System,” which was last published December 11, 1998 at 63 FR 68596:
18. If HHS decides to administratively garnish wages of a delinquent debtor under the wage garnishment provision in 31 U.S.C. 3720D, a record from the system may be disclosed to the debtor's employer. This disclosure will take the form of a wage garnishment order directing that the employer pay a portion of the employee/debtor's wages to the federal government. Disclosure of records is limited to the debtor's name, alias name, and Social Security Number, creditor agency name and contact information, and debt amount due as of a certain date.
09-90-0024.
HHS Financial Management System Records.
Unclassified.
Servers for the electronic systems are located in Bethesda, Maryland (primary facility) and Sterling, Virginia (backup facility). Beginning approximately December 2015, the primary hosting locations will be Austin, Texas, and Bethesda, Maryland, and the backup locations will be Colorado Springs, Colorado and Sterling, Virginia.
Source documents used to enter data into the electronic systems, and supporting records providing additional background information, are maintained in finance offices and/or in the relevant administrative and/or program office(s), or by a designated claims officer apart from the finance office. See Appendix 1 for finance office locations.
Records pertain to individuals who receive or are entitled to a payment from HHS, and individuals who pay or owe money to HHS. Individuals receiving payments include, but are not limited to, members of the public who have established a claim against HHS, such as under the Federal Tort Claims Act; HHS employees who receive award payments, reimbursements for official travel and training expenses, subsidies for mass transit expenses, and similar payments; HHS grantees, contractors and consultants; Fellows; and recipients of HHS loans and scholarships. Individuals owing monies include, but are not limited to, individuals who have been overpaid and who owe HHS a refund, and individuals who have received goods or services from HHS for which there is a charge or fee (
The records consist of accounts payable records and accounts receivable records pertaining to individual payees/obligees and individual payors/obligors, excluding payroll records and records used to collect and manage delinquent federal debts, which are covered in separate systems of records. The records contain the individual's name, identification number/Social Security Number (SSN) or EIN/TIN, mailing address, email address, phone number, purpose of payment or request for payment, bank account and routing numbers, accounting classification, and the amount paid. Accounts receivable
31 U.S.C. 3512, 3711, 3716, 3721, 1321 note; E.O. 13520.
Relevant HHS personnel use the records on a need-to-know basis to process and track payments made and monies owed to or by individuals and HHS, and to ensure that payments by HHS are based on an official commitment and obligation of government funds. When an individual is required to repay funds that have been advanced to him (
Records in this system of records that pertain to overdue and delinquent federal debts are also used for debt collection purposes, as described in the SORN published for System of Records No. 09-40-0012 “Debt Management and Collection System.”
Records from this system of records may be disclosed to the following parties outside HHS, without the individual's consent, for these purposes:
1. Records will be routinely disclosed to the Treasury Department for purposes of verifying payment eligibility using Treasury's “Do Not Pay” (DNP) system and effecting payments. Records may also be disclosed to Treasury pursuant to a DNP computer matching agreement between HHS and Treasury for purposes authorized by 31 U.S.C. 3321 note and E.O. 13520, if the matching program requires data from this system of records.
2. Records may be disclosed to Members of Congress concerning a federal financial assistance program in order for Members to make informed opinions on programs and/or activities impacting legislative decisions. Also, disclosure may be made to a Congressional office from an individual's record in response to a written inquiry from the congressional office made at the written request of the individual in order to be responsive to the constituency.
3. When a record on its face, or in conjunction with other records, indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto, disclosure may be made to the appropriate public authority, whether federal, foreign, state, local, tribal, or otherwise, responsible for enforcing, investigating, or prosecuting the violation or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto, if the information disclosed is relevant to the enforcement, regulatory, investigative, or prosecutorial responsibility of the receiving entity.
4. A record from this system may be disclosed to a federal, foreign, state, local, tribal or other public authority of the fact that this system of records contains information relevant to the hiring or retention of an employee, the issuance or retention of a security clearance, the letting of a contract, or the issuance or retention of a license, grant or other benefit. The other agency or licensing organization may then make a request supported by the written consent of the individual for further information if it so chooses. HHS will not make an initial disclosure unless the information has been determined to be sufficiently reliable to support a referral to another office within the agency or to another federal agency for criminal, civil, administrative, personnel, or regulatory action.
5. Where federal agencies having the power to subpoena other federal agencies' records, such as the Internal Revenue Service (IRS) or the U.S. Commission on Civil Rights, issue a subpoena to HHS for records in this system of records, HHS will make such records available; provided, however, that in each case, HHS determines that the disclosure is compatible with the purpose for which the records were collected.
6. Information may be disclosed to a labor organization recognized under E.O. 11491 or 5 U.S.C. Chapter 71, when a contract between a component of the Department and the labor organization provides that the agency will disclose personal records when relevant and necessary to the organization's duties of exclusive representation concerning civilian personnel policies, practices, and matters affecting working conditions.
7. A record may be disclosed to the Department of Justice (DOJ) or to a court or other tribunal when:
a. HHS, or any component thereof;
b. any HHS employee in his/her official capacity;
c. any HHS employee in his/her individual capacity where DOJ (or HHS, where it is authorized to do so) has agreed to represent the employee; or
d. the United States Government,is a party to litigation or has an interest in such litigation and, by careful review, HHS determines that the records are both relevant and necessary to the litigation and that, therefore, the use of such records by the DOJ, court, or other tribunal is deemed by HHS to be compatible with the purpose for which HHS collected the records.
8. A record about a loan applicant or potential contractor or grantee may be disclosed from the system of records to credit reporting agencies to obtain a credit report in order to determine the individual's creditworthiness and ability to repay debts to the federal government.
9. When an individual applies for a loan under a loan program as to which the Office of Management and Budget (OMB) has made a determination under I.R.C. 6103(a)(3), a record about his/her application may be disclosed to the Treasury Department to find out whether he/she has a delinquent tax account, for the sole purpose of determining the individual's creditworthiness.
10. Information from this system of records is used to report, to the Internal Revenue Service and applicable state and local governments, items considered to be income to an individual; for example, certain travel-related payments to employees, and all payments made to individuals not treated as employees (
11. A record may be disclosed to banks enrolled in the Treasury Credit Card Network to collect a payment or debt by credit card when the individual has given his/her credit card number for this purpose.
12. Information may be disclosed to federal agencies and Department contractors, grantees, consultants, or volunteers who have been engaged by HHS to assist in accomplishment of an HHS function relating to the purposes of the system of records and that need to have access to the records in order to assist HHS in performing the activity. Any contractor will be required to comply with the requirements of the Privacy Act of 1974.
13. Information may be disclosed to the Office of Management and Budget (OMB) at any stage in the legislative coordination and clearance process in connection with private relief legislation as set forth in OMB Circular A-19.
14. Information may be disclosed to a public or professional auditing organization for the purpose of conducting financial or compliance audits.
15. Information may be disclosed to insurance companies and parties such as common carriers and warehousemen in the course of settling an employee's claim against the Department for lost or damaged property.
16. Information from this system may become available to the U.S. Department of Homeland Security (DHS) if captured in an intrusion detection system used by HHS and DHS pursuant to a DHS cybersecurity program that monitors Internet traffic to and from federal government computer networks to prevent a variety of types of cybersecurity incidents.
17. Information may be disclosed to appropriate federal agencies and Department contractors that have a need to know the information for the purpose of assisting the Department's efforts to respond to a suspected or confirmed breach of the security or confidentiality of information maintained in this system of records, when the information disclosed is relevant and necessary for that assistance.
Records may also be disclosed to parties outside HHS, without the individual's consent, for any of the purposes authorized directly in the Privacy Act at 5 U.S.C. 552a(b)(2) and (b)(4)-(b)(12). See System of Records No. 09-40-0012 “Debt Management and Collection System” for additional routine use disclosures that may be made from that system, with respect to records of federal debts from this system that are used for debt management and collection purposes.
Disclosure pursuant to 5 U.S.C. 552a(b)(12): Disclosure may be made from this system to “consumer reporting agencies” as defined in 31 U.S.C. 3701(a)(3), reflecting that an individual is responsible for a claim (whether current or overdue), in order to aid in the collection of the claim, typically by providing an incentive to the individual to repay the claim or debt timely, by making it part of the individual's credit record. Disclosure of records is limited to the individual's name, address, Social Security Number, and other information necessary to establish the individual's identity; the amount, status and history of the claim; and the agency or program under which the claim arose. The disclosure will be made only after the procedural requirements of 31 U.S.C. 3711(e) have been followed.
Electronic records are stored on computer disc pack and magnetic tape at central computer sites. Hard copy documents are stored in paper file folders.
Records are retrieved by an individual's name, Social Security Number (SSN) or Taxpayer Identification Number (TIN); and/or by document or batch identifier.
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Records are retained and disposed of in accordance with General Records Schedule (GRS) 1.1, Financial Management and Reporting Records, which provides for records to be retained for six years after final payment or cancellation, or longer if required for business use.
The System Manager for the overall system of records is the HHS Assistant Secretary for Financial Resources, 200 Independence Avenue SW.—Room 514G, Washington, DC 20201.
The System Manager for records pertaining to a particular component of HHS is the Finance Officer in the relevant finance office listed in Appendix 1.
An individual who wishes to know if this system contains records about him or her may make a notification request. The request must be made in writing or in person and must be addressed to the relevant System Manager. The individual must show proof of identity and must provide his or her name and Social Security Number, purpose of payment or collection (travel, grant, etc.), and, if possible, the agency accounting classification.
Same as notification procedure. To request access to his or her record, the individual must clearly specify the record contents being sought. The individual may also request an accounting of disclosures that have been made of his or her records, if any.
Same as notification procedure. To contest information about him or her, the individual must reasonably identify the record; specify the information being contested, the corrective action sought, and the reasons for requesting the correction; and provide supporting justification showing how the record is inaccurate, incomplete, untimely, or irrelevant.
Information is obtained directly from individual record subjects; from contractors, private companies, or other government agencies; and from documents submitted to or received from a budget, accounting, travel, training, or other program office.
None.
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(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.
15 U.S.C. 3719.
The National Institute on Drug Abuse (NIDA), one of the components of the National Institutes of Health (NIH), announces the Challenge, “Addiction Research: There's an App for that”. With this Challenge, NIDA aims to develop novel mobile applications (apps) for future addiction research explicitly created on Apple Inc.'s ResearchKit framework. ResearchKit is open-source software which makes it easy for researchers and developers to create apps for specific biomedical research questions by circumventing development of custom code. Contestants will create the solicited app for use by addiction researchers to engage mobile device users in future society-changing research.
The Challenge begins November 3, 2015.
Submission Period: November 3, 2015 to April 29, 2016, 11:59 p.m., ET.
Judging Period: May 2, 2016 to July 29, 2016.
Winners Announced: August 1, 2016.
Elena Koustova, Ph.D., MBA, Director, Office of Translational Initiatives and Program Innovations (OTIPI), NIDA Challenge Manager, National Institute on Drug Abuse (NIDA), 6001 Executive Blvd. Room 4286, MSC 9555 Bethesda, MD 20892-9555 Phone: (301) 496-8768 Email:
Background: The problem of drug abuse affects almost every community and family and yet it remains an uncomfortable subject for discussion. Each year, substance abuse causes high rates of injuries and mortality among Americans and plays a role in many major social problems, such as drugged driving, violence, child abuse, stress, crime, and problems with employment. It harms unborn babies, destroys families, and contributes to homelessness. The societal burden caused by substance use disorders exceeds half a trillion dollars yearly. This cost to society is greater than other chronic conditions such as diabetes ($131.7 billion) and cancer ($171.6 billion). NIDA sponsors the majority of addiction-related scientific research in the world. NIDA-funded researchers seek to answer important scientific questions about the paths people take to avoid or to succumb to drug addiction, about the mechanisms and pathways involved in substance-use disorders, and about new tools and techniques for prevention and treatment.
Because the problems stemming from drug abuse and addiction affect almost every community and family to some degree, NIDA issues this Challenge with the hope that Contestants will actively mobilize around the need to know more about the roots of drug abuse and addiction. Specifically, NIDA is seeking to engage communities to envision and to create an app which will help advance scientific research in areas of nicotine, opioids, cannabinoids (including marijuana), methamphetamines, and prescription drug use. The Institute is also interested in further understanding abstinence and wellness as it relates to drug addiction.
The causes and consequences of addiction are multi-faceted, involving biological, behavioral, social, cultural, economic, and environmental factors. These factors likely interact, with no single factor exerting substantial independent influence on drug use and addiction risk. Unfortunately, most research addresses these factors separately because it is difficult to collect data on the large numbers of participants needed to understand the multi-factor relationships. However, this is changing. Mobile technology offers the capacity to recruit large numbers of participants, in diverse and distant places and to collect prospective data on a broad range of variables as these study participants go about their daily lives. This approach has already led to advances in addiction research. Mobile assessment has extended to geolocation and physiological monitoring, with promising results for predicting and detecting drug use in the field.
As exciting as these findings have been, however, the scope of studies and the types and number of participants studied have been limited by researchers' access to mobile technology. The problem has been exacerbated by a gap in communication between addiction researchers and software and hardware developers. In addition, NIDA-sponsored mobile tools and technologies are often afflicted by a lack of interoperability and by non-sustainability beyond the grant-funding period.
Fortunately, those concerns can be successfully addressed by the inventive uses of customizable research platforms developed by the established informatics technology companies. The recently unveiled ResearchKit developed by Apple Inc. is the available platform designed specifically for
Challenge Goals: NIDA hopes this Challenge will help to promote the development of innovative research apps created on Apple's ResearchKit framework for future addiction studies. Research questions to be answered could include, but are not limited to: Would tracking lifestyle choices, behaviors, nutrition, stress, social participation, work, school, home, neighborhood, genetics, exposure to technology, etc. help to understand why some people manage to stay away from drug abuse and addiction? What contributes to the choice to abuse prescription drugs? How can we systematically collect the experience of patients recovering from addiction? Are there innovative approaches to recording patients' experiences of impact and burden of drug addiction over time? Can the benefits of reduced drug use be meaningfully detected? Can we reveal and collect the participant-identified disease impacts and the preferences for treatment impacts to identify meaningful, significant, perhaps, novel, and potential measures of benefit?
It is critical to note that the apps developed as a result of this Challenge are to be explicitly created for future scientific research purposes, and not for self-help, education, or self-wellness monitoring like other apps already available on iTunes. The submissions must not contain any data about real people, and the Contestants must not use data from or about real people in the development or testing of the apps. However, the app should be designed such that it could be used in future clinical research studies with real human subjects.
Major ethical and legal issues that have to be addressed at every step of the way should include privacy (especially in terms of the end-user's experience as he or she interacts with the app) and confidentiality (the assurance that end-users' data will be seen and used only in the ways they want). Contestants are responsible for developing and coding the app so that its future use in a study with real human research subjects would be compliant with all applicable federal, state, local, and institutional laws, regulations, and policies. These include, but are not limited to, Substance Abuse Confidentiality Regulations at 42 CFR part 2, Health Information Portability and Accountability Act (HIPAA) protections, Department of Health and Human Services (HHS) Protection of Human Subjects regulations at 45 CFR part 46, and Food and Drug Administration (FDA) regulations.
(1) To be eligible to win a prize under this Challenge, an individual or entity:
a. Shall have registered to participate in the Challenge under the rules promulgated by NIDA as published in this Notice;
b. Shall have complied with all the requirements set forth in this Notice;
c. 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. However, non-U.S. citizens and non-permanent residents can participate as a member of a team that otherwise satisfies the eligibility criteria. Non-U.S. citizens and non-permanent residents are not eligible to win a monetary prize (in whole or in part). Their participation as part of a winning team, if applicable, may be otherwise recognized when the results are announced.
d. May not be a Federal entity;
e. May not be a Federal employee acting within the scope of the employee's employment and further, in the case of HHS employees, may not work on their submission(s) during assigned duty hours;
f. May not be an employee of the NIH, a judge of the challenge, or any other party involved with the design, production, execution, or distribution of the Challenge or the immediate family of such a party (
(2) Federal grantees may not use Federal funds to develop their Challenge submissions unless use of such funds is consistent with the purpose of their grant award and specifically requested to do so due to the Challenge design, and as announced in the
(3) Federal contractors may not use Federal funds from a contract to develop their Challenge submissions or to fund efforts in support of their Challenge submission.
(4) Submissions must not infringe upon any copyright or any other rights of any third party. Each Contestant warrants that he or she is the sole author and owner of the work and that the work is wholly original.
(5) By participating in this Challenge, each Contestant (whether competing singly or in a group) and entity agrees to assume any and all risks and waive claims against the Federal government and its related entities (as defined in the COMPETES Act), except in the case of willful misconduct, for any injury, death, damage, or loss of property, revenue, or profits, whether direct, indirect, or consequential, arising from participation in this Challenge, whether the injury, death, damage, or loss arises through negligence or otherwise.
(6) Based on the subject matter of the Challenge, the type of work that it will possibly require, as well as an analysis of the likelihood of any claims for death, bodily injury, property damage, or loss potentially resulting from Challenge participation, no Contestant (whether competing singly or in a group) or entity participating in the Challenge is required to obtain liability insurance or demonstrate financial responsibility in order to participate in this Challenge.
(7) By participating in this Challenge, each Contestant (whether competing singly or in a group) and entity agrees to indemnify the Federal government against third party claims for damages arising from or related to Challenge activities.
(8) A Contestant or entity shall not be deemed ineligible because the Contestant or entity used Federal facilities or consulted with Federal employees during the Challenge if the facilities and employees are made available to all individuals and entities participating in the Challenge on an equitable basis.
(9) By participating in this Challenge, each Contestant (whether participating singly or in a group) and entity grants to the NIH/NIDA an irrevocable, paid-up, royalty-free nonexclusive, sublicensable worldwide license to post, link to, share, use and display publicly on the Web the submission, including the architectural design of the app and any other information necessary for a third-party to use, adapt, improve or otherwise modify the app. Each Contestant will retain all other intellectual property rights in their submissions, as applicable.
(10) NIDA reserves the right, in its sole discretion, to (a) cancel, suspend, or modify the Challenge, (b) not award any prizes if no entries are deemed worthy, and (c) to disqualify from competition any submission that contains or uses data about real people or is deemed, in the judging panel's discretion, inappropriate, offensive, defamatory, or demeaning.
(11) Each Contestant (whether participating singly or in a group) or entity agrees to follow all applicable federal, state, and local laws, regulations, and policies.
(12) Each Contestant (whether participating singly or in a group) and entity participating in this Challenge must comply with all terms and conditions of these rules, and participation in this Challenge constitutes each such contestant's full and unconditional agreement to abide by these rules. Winning is contingent upon fulfilling all requirements herein.
Due to sensitivities surrounding addictions information, only fictitious data may be used for app development. The submission must not contain any data from or about real people, and the Contestant must not use data from or about real people in the development or testing of the app. However, the app should be designed such that it could be used in future potential clinical research studies with real human subjects. Entries that include data from or about real people will be disqualified.
Each submission for this Challenge requires a complete “Submission Package.” The Submission Package includes:
(1) A white paper describing the app built upon the proposed design of future scientific research studies. The white paper must describe a scientific research agenda and study design that could be undertaken using the developed app in future human subject research. Components of the white paper include, but are not limited to:
The white paper must consist of a PDF file, not contain any information directly identifying the Contestants. The PDF document must be formatted to be no larger than 8.5″ by 11.0″, with at least 1 inch margins. The white paper must be no more than 12 pages long. Font size must be no smaller than 11 point Arial.
(2) A video of the app prototype. A brief demo video (or its link to YouTube) must be no more than five (5) minutes and clearly demonstrate the app functionality. The Contestant must have permission to use all content in the video, including footage, music and images. The video must not contain any information or images directly identifying the Contestant.
(3) App software. The working software must operate on a mobile device using Apple's ResearchKit framework. The Contestants must provide a way for the NIDA to test the app such as a weblink, installation file, or a shared test build. The submission may be disqualified if the software application fails to function as expressed in the prototype description submitted by the Contestant.
The evaluation process will begin by anonymizing and removing those that are not responsive to this Challenge or not in compliance with all rules of participation eligibility. Submissions that are responsive and in compliance will next undergo a review by federal employees with expertise in the relevant areas of science and executive scientific advisors. A panel of judges consisting of federal employees will then score responsive and compliant submissions entries in accordance with the judging criteria outlined above. Final recommendations will be determined by a vote of the judges based on score. Scores from each criterion will be weighted equally, but failure to meet a minimum standard for any one criterion might disqualify an application. The score for each submission will be the sum of the scores from each of the 5 voting judges, for a maximum of 200 points.
What is ResearchKit? ResearchKit is an open-source software kit designed specifically for medical and health research; it simplifies the creation of iPhone apps that can help physicians and scientists gather data from willing participants. The framework allows researchers to circumvent the development of custom code for common tasks such as sharing, storage, and syncing of research data. It helps to create apps to recruit human subjects in research, present informed-consent materials, create surveys and tasks, and monitor sensors interoperable with smartphone technology. ResearchKit works seamlessly with Apple HealthKit, a suite of applications that can interact with the iPhone accelerometer, microphone, gyroscope, GPS sensors, and external hardware such as glucometers, inhalers, and other existing and newly developed sensors. These capabilities could help monitor a participant's gait, motor impairment, physical fitness, speech, and memory, to name just a few. Additional hardware extensions (add-apters) are frequently developed and available.
It is important to note that the ResearchKit framework does not include a data management solution. The framework can be used with a data management solution only after IRB approval of the human health study with consideration of the provider's data privacy and security practices. Apple's ResearchKit debuted in March 2015 with five opt-in health research apps, now available for free public download. For more information about Apple's ResearchKit and the developed apps visit
Features and modules currently accessible and compatible with Apple's ResearchKit: Apple's iPhones have a number of built-in sensors, including Touch ID, Barometer, Accelerometer, Gyroscope, Proximity Sensor, and Ambient Light Sensor. The Touch ID is a biometric technology that provides user identification through a finger scanner, the Barometer measures atmospheric pressure, the Accelerometer measure the tilting motion and orientation of the iPhone, and the Three-Axis Gyroscope enables 3-axis angular acceleration around the X, Y and Z axes, enabling precise calculation of yaw, pitch, and roll. The Proximity Sensor deactivates the display and touchscreen when the phone is brought near the face during a call and the Ambient Light Sensor adjusts the display brightness. All sensors are available for the iPhone 6 Plus, iPhone 6, iPhone 5S and iPhone 5. The only exceptions are the Barometer sensor, which is only available for the iPhone 6 Plus, and iPhone 6, and the Touch ID sensor, which is only available for the iPhone 6 Plus, iPhone 6, and iPhone 5S.
In addition to internal sensors, there are a number of add-apters which work with existing iPhones. The add-apters can measure pulse rate, breathing pattern, blood pressure, blood oxygen saturation, heart rate variability, galvanic skin response, and glucose concentration, and can even help detect ear infections and track inhaler medication use. Some add-adapters can be directly purchased through iTunes or third-party vendors; others must be purchased through a physician. Based on the type of adapter, prices can vary from $6 to $249.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITF) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines). The Mandatory Guidelines were first published in the
A notice listing all currently HHS-certified laboratories and IITFs is published in the
If any laboratory or IITF has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end and will be omitted from the monthly listing thereafter.
This notice is also available on the Internet at
Giselle Hersh, Division of Workplace Programs, SAMHSA/CSAP, Room 7-1051, One Choke Cherry Road, Rockville, Maryland 20857; 240-276-2600 (voice), 240-276-2610 (fax).
The Mandatory Guidelines were initially developed in accordance with Executive Order 12564 and section 503 of Public Law 100-71. The “Mandatory Guidelines for Federal Workplace Drug Testing Programs,” as amended in the revisions listed above, requires strict standards that laboratories and IITFs must meet in order to conduct drug and specimen validity tests on urine specimens for federal agencies.
To become certified, an applicant laboratory or IITF must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory or IITF must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories and IITFs in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines. A HHS-certified laboratory or IITF must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA), which attests that it has met minimum standards.
In accordance with the Mandatory Guidelines dated November 25, 2008 (73 FR 71858), the following HHS-certified laboratories and IITFs meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
*The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Development (HUD).
Notice of a Federal Advisory Meeting.
This notice sets forth the schedule and proposed agenda for a teleconference meeting of the Manufactured Housing Consensus Committee (MHCC), Technical Systems Subcommittee. The teleconference meeting is open to the public. The agenda provides an opportunity for citizens to comment on the business before the MHCC.
The teleconference meeting will be held on December 2, 2015, 1:00 p.m. to 4:00 p.m. Eastern Daylight Time (EDT). The teleconference numbers are: US toll-free: 1-866-622-8461, Participant Code: 4325434.
Pamela Beck Danner, Administrator and Designated Federal Official (DFO), Office of Manufactured Housing Programs, Department of Housing and Urban Development, 451 Seventh Street SW., Room 9166, Washington, DC 20410, telephone 202-708-6423 (this is not a toll-free number). Persons who have difficulty hearing or speaking may access this number via TTY by calling the toll-free Federal Information Relay Service at 800-877-8339.
Notice of this meeting is provided in accordance with the Federal Advisory Committee Act, 5. U.S.C. App. 10(a)(2) through implementing regulations at 41 CFR 102-3.150. The MHCC was established by the National Manufactured Housing Construction and Safety Standards Act of 1974, (42 U.S.C. 5401
• Provide periodic recommendations to the Secretary to adopt, revise, and interpret the Federal manufactured housing construction and safety standards;
• Provide periodic recommendations to the Secretary to adopt, revise, and interpret the procedural and enforcement regulations, including regulations specifying the permissible scope and conduct of monitoring; and
• Be organized and carry out its business in a manner that guarantees a fair opportunity for the expression and consideration of various positions and for public participation.
The MHCC is deemed an advisory committee not composed of Federal employees.
Tentative Agenda:
December 2, 2015, from 1:00 p.m. to 4:00 p.m. Eastern Daylight Time (EDT).
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service (Service), have received, from Roseburg Resources Company (RRC) and Oxbow Timber I, LLC (Oxbow), an application for an enhancement of survival permit (permit) for the federally threatened northern spotted owl under the Endangered Species Act of 1973, as amended (ESA). The permit application includes a draft safe harbor agreement (SHA) addressing access to RRC and Oxbow lands for the survey and removal of barred owls as part of the Service's Barred Owl Removal Experiment in Lane County, Oregon. 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, written comments must be received from interested parties by December 3, 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 Roseburg Resources Company and Oxbow Timber I, LLC draft SHA and the draft EA.
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Robin Bown, U.S. Fish and Wildlife Service (see
RRC and Oxbow have applied to the Service for an enhancement of survival permit under section 10(a)(1)(A) of the ESA (16 U.S.C. 1531
The SHA covers approximately 9,000 acres of forest lands owned by Oxbow and 400 acres of forest lands owned by RRC within the treatment portion of the Oregon Coast Ranges Study Area in Lane County, Oregon. The proposed term of the permit and the SHA is 10 years. In return for permission to access their lands for barred owl surveys and removal in support of the Service's Barred Owl Removal Experiment, the permit would authorize incidental take of the threatened northern spotted owl (
Under a SHA, participating landowners voluntarily undertake activities on their property to benefit species listed under the ESA (16 U.S.C. 1531
These assurances allow the property owner to alter or modify the enrolled property to agreed-upon baseline conditions, even if such alteration or modification results in the incidental take of a listed species. The baseline conditions represent the existing levels of use of the property by species covered in the SHA. SHA assurances depend on the property owner complying with obligations in the SHA and the terms and conditions of the permit. The SHA's net conservation benefits must be sufficient to contribute, either directly or indirectly, to the recovery of the covered listed species. Enrolled landowners may make lawful use of the enrolled property during the permit term and may incidentally take the listed species named on the permit as long as that take does not modify the agreed-upon net conservation benefit to the species.
Application requirements and issuance criteria for enhancement of survival permits for SHAs are found in the Code of Federal Regulations (CFR) at 50 CFR 17.22(c). The Service's Safe Harbor Policy (64 FR 32717, June 17, 1999) and the Safe Harbor Regulations (68 FR 53320, September 10, 2003; and 69 FR 24084, May 3, 2004) are available at
RRC and Oxbow submitted an application for an enhancement of survival permit under the ESA to authorize incidental take of the federal-threatened northern spotted owl. The permit application includes a draft SHA between RRC and Oxbow, and the Service. The SHA addresses access to support the Service's Barred Owl Removal Experiment (USFWS 2013a) in the Oregon Coast Ranges Study Area (Study Area), Lane County, Oregon.
The SHA covers RRC and Oxbow lands within the treatment area of the Study Area. The treatment area is composed lands owned by many different landowners, including 58 percent Federal lands, 13 percent State lands, and 29 percent private lands. This is the focus of the SHA because this is the area where the removal of barred owls under the experiment may lead to reoccupancy of sites that are not currently occupied by spotted owls. If barred owl removal leads to the reoccupancy of sites by spotted owls, in the absence of this permit some
Take would be allowed for forest operation and management activities, including but not limited to road use, road construction, road maintenance, and the normal management activities associated with managing private forestland for timber production, such as timber harvest, planting, spraying, fertilizing, monitoring, measuring, patrolling, and fighting wildfire.
The goal of both RRC and Oxbow is to manage their timberlands for timber production, providing economic, community and stewardship values on a long-term sustained-yield basis while meeting State and Federal regulatory requirements. The RRC and Oxbow lands within the Study Area are an important part of each company's overall operating plans from both a short-term and long-term perspective. RRC and Oxbow are anticipating significant changes and fluctuations regarding spotted owl occupancy status of well surveyed sites and areas on or near RRC and Oxbow lands in the treatment area after barred owl removal occurs and potential short term regulatory impacts to operation plans after barred owl removal in the treatment area occurs.
The purpose of RRC and Oxbow participation is to demonstrate good-faith cooperation with the Service regarding this recovery action while maintaining a reasonable level of certainty regarding the anticipated biological response and subsequent regulatory requirements impacting both forest operations and management during and after the experiment period for themselves, and to the maximum extent allowable under the ESA, adjacent landowners.
To support the Barred Owl Removal Experiment, RRC and Oxbow will provide the researchers access to RRC and Oxbow lands to survey barred owls throughout the Study Area and to remove barred owls located on RRC and Oxbow lands within the treatment portion of the Study Area. In addition, RRC and Oxbow will maintain habitat to support actively nesting spotted owls on any reoccupied non-baseline sites during the nesting season.
The Service proposes to enter into the SHA and to issue an enhancement of survival permit to RRC and Oxbow for incidental take of the northern spotted owl caused by covered activities, if permit issuance criteria are met. The permit would have a term of 10 years.
As a result of the continued monitoring of spotted owls on RRC and Oxbow lands as part of the ongoing spotted owl surveys conducted under the Northwest Forest Plan Monitoring program, we have strong annual survey data for the area that may be included in the SHA and can establish a baseline based on the estimated current occupancy status of each spotted owl site. Any spotted owl sites with a response from at least one resident spotted owl between 2013 and present are considered in the baseline and would not be authorized to be taken. Based on this approach, there are nine baseline spotted owl sites in the treatment portion of the Oregon Coast Ranges Study Area where RRC or Oxbow own land or have operations easements or agreements.
The conservation benefits for the northern spotted owl under the SHA arise from RRC and Oxbow allowing access to their roads and lands for barred owl surveys and, within the treatment area, barred owl removal. In this landscape of multiple landowners, access to interspersed non-Federal lands is important to the efficient and effective completion of the Barred Owl Removal Experiment within a reasonable timeframe.
The impact of the increase in non-native barred owl populations as they expand in the range of the spotted owls has been identified as one of the primary threats to the continued existence of the spotted owl. The Recovery Plan for the Northern Spotted Owl includes Recovery Action 29—“Design and implement large-scale control experiments to assess the effects of barred owl removal on spotted owl site occupancy, reproduction, and survival” (USFWS 2011, p. III-65). The Service developed the Barred Owl Removal Experiment to implement this Recovery Action, completing the Environmental Impact Statement and Record of Decision in 2013 (USFWS 2013a and b). The Service selected a study conducted on four study areas, including the Oregon Coast Ranges Study Area. Timely results from this experiment are crucial for informing development of a long-term barred owl management strategy, itself essential to the conservation of the northern spotted owl.
While the Study Area is focused on Federal lands, it still contains significant interspersed non-Federal lands. To complete the experiment in the most efficient and complete manner, the Service requires access on non-public roads and the ability to remove barred owls on the non-Federal lands within the treatment area. While the experiment is possible without access to non-Federal lands, failure to remove barred owls from portions of the treatment area could reduce the power of the experiment to detect any changes in spotted owl population dynamics resulting from the removal of barred owls and potentially extend the duration of the experiment. The Service has repeatedly indicated the need to gather this information in a timely manner. Failure to access non-Federal lands could delay the results.
Incidental take of spotted owls under this SHA would likely be in the form of harm from forest operation activities that result in habitat degradation, or harassment from forest management activities that cause disturbance to spotted owls. Incidental take in the form of harassment by disturbance is most likely to occur near former spotted owl nest sites if they become reoccupied. Harm and harassment could occur during timber operations and management that will continue during the permit term. RRC and Oxbow will perform routine harvest, road maintenance and construction activities, including rock pit development, herbicide spraying and soil fertilization that may disturb spotted owls.
RRC and Oxbow own lands in the treatment portion of the Oregon Coast Ranges Study Area. Access to the RRC and Oxbow lands is important to the efficient and effective completion of the Barred Owl Removal Experiment within a reasonable timeframe. All of the currently occupied spotted owl sites are within the baseline and no take of these sites is authorized under this SHA. If barred owl removal does allow spotted owls to reoccupy sites that are not currently occupied (non-baseline), RRC and Oxbow will be allowed to take these spotted owls. It is highly unlikely that these sites would ever be reoccupied by spotted owls without the removal of barred owls.
The removal of barred owls on the Study Area will end within 10 years. The Service anticipates that, once released from the removal pressure, barred owl populations will rebound to pre-treatment levels within 3 to 5 years. This is likely to result in the loss of the newly reoccupied sites. Therefore, any occupancy of these sites is likely to be temporary and short term.
The SHA allows for the take of spotted owls on 19 non-baseline sites in the treatment area of the Study Area if these sites become reoccupied during the barred owl removal study. Take of non-baseline owl sites that may be reoccupied can result from disturbance from forest management activities or habitat loss. For 6 of the 19 sites, take
For the remaining 13 sites, take may occur as a result of disturbance or habitat removal if they become reoccupied during the experiment. Loss of habitat has longer term effects, and the degree to which it may affect the study depends on the amount of potential habitat loss compared to the condition of the spotted owl site. RRC and Oxbow are minor owners on seven of these sites with less than 10 percent of the land ownership and less than five percent of the remaining suitable habitat on these seven sites. Federal lands contain the majority of the remaining suitable spotted owl habitat on six of these seven sites. Thus, even if all non-baseline spotted owl sites are reoccupied by spotted owls, and RRC and Oxbow remove all habitat remaining on their lands within these sites under their permit, many of these sites are likely to remain viable at some level as a result of habitat remaining on other landowners, including the Federal agencies.
The primary conservation value of the Barred Owl Removal Experiment is the information it provides on the efficacy of removal as a tool to manage barred owl populations for the conservation of the spotted owl. This information is crucial to the development of a long-term barred owl management strategy, itself essential to the conservation of the northern spotted owl. In this landscape of multiple landowners, access to interspersed non-Federal lands is important to the efficient and effective completion of the Barred Owl Removal Experiment within a reasonable timeframe. The SHA under which RRC and Oxbow allow access to their roads and lands for barred owl surveys and, within the treatment area, barred owl removal contributes significantly to the conservation value of this experiment. Thus, the take of spotted owls on the temporarily reoccupied sites is more than offset by the value of the information gained from the experiment and its potential contribution to a long-term barred owl management strategy. This SHA advances the recovery of the spotted owl.
The development of the draft SHA and the proposed issuance of an enhancement of survival 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
1. The direct, indirect, and cumulative effects that implementation of the SHA could have on endangered and threatened species;
2. Other reasonable alternatives consistent with the purpose of the proposed SHA as described above, and their associated effects;
3. Measures that would minimize and mitigate potentially adverse effects of the proposed action;
4. Identification of any impacts on the human environment that should have been analyzed in the draft EA pursuant to NEPA;
5. Other plans or projects that might be relevant to this action;
6. The proposed term of the enhancement of survival permit and whether the proposed SHA would provide a net conservation benefit to the covered species; and
7. Any other information pertinent to evaluating the effects of the proposed action on the human environment.
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 used in preparing the draft EA, will be available for public inspection by appointment, during normal business hours, at our Oregon Fish and Wildlife Office (see
We will evaluate the draft SHA, associated documents, and any public comments we receive to determine whether the permit application and the EA meet the requirements of section 10(a) of the ESA and NEPA, respectively, and their respective implementing regulations. We will also evaluate whether issuance of an enhancement of survival permit would comply with section 7 of the ESA by conducting an intra-Service section 7 consultation on the proposed permit action. If we determine that all requirements are met, we will sign the proposed SHA and issue an enhancement of survival permit under section 10(a)(1)(A) of the ESA to the applicant, RRC and Oxbow, for incidental take of the northern spotted owl caused by covered activities in accordance with the terms of the permit and the SHA. We will not make our final decision until after the end of the 30-day public comment period, and we will fully consider all comments and information we receive during the public comment period.
We provide this notice pursuant to section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of availability; request for public comments.
Under the Endangered Species Act, as amended (Act), we, the U.S. Fish and Wildlife Service, invite the public to comment on incidental take permit applications for take of the federally listed American burying beetle resulting from activities associated with the geophysical exploration (seismic) and construction, maintenance, operation, repair, and decommissioning of oil and gas well field infrastructure within Oklahoma. If approved, the permits would be issued under the approved
To ensure consideration, written comments must be received on or before December 3, 2015.
You may obtain copies of all documents and submit comments on the applicant's ITP application by one of the following methods. Please refer to the permit number when requesting documents or submitting comments.
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Marty Tuegel, Branch Chief, by U.S. mail at Environmental Review, P.O. Box 1306, Room 6034, Albuquerque, NM 87103; or by telephone at 505-248-6651.
Under the Endangered Species Act, as amended (16 U.S.C. 1531
We invite local, State, Tribal, and Federal agencies, and the public to comment on the following application under the ICP, for incidental take of the federally listed ABB. Please refer to the appropriate permit number (TE-123456) when requesting application documents and when submitting comments. Documents and other information the applicants have submitted with this application are available for review, subject to the requirements of the Privacy Act (5 U.S.C. 552a) and Freedom of Information Act (5 U.S.C. 552).
Written comments we receive become part of the public record associated with this action. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can request in your comment that we withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. We will not consider anonymous comments. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.
We provide this notice under section 10(c) of the Act (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of issuance.
In accordance with the Marine Mammal Protection Act of 1972, as amended (MMPA), the U.S. Fish and Wildlife Service (Service) has issued letters of authorization for the nonlethal take of polar bears and Pacific walrus incidental to oil and gas industry exploration, development, and production activities in the Beaufort Sea and the adjacent northern coast of Alaska and incidental to oil and gas
Michael Hendrick at the U.S. Fish and Wildlife Service, Marine Mammals Management Office, 1011 East Tudor Road, MS 341, Anchorage, AK 99503; (800) 362-5148 or (907) 786-3479.
On August 3, 2011, the Service published in the
Each LOA stipulates conditions or methods that are specific to the activity and location. Holders of LOAs must use methods and conduct activities in a manner that minimizes to the greatest extent practicable adverse impacts on Pacific walrus and polar bears and their habitat, and on the availability of these marine mammals for subsistence purposes. Intentional take and lethal incidental take are prohibited.
In accordance with section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361
On June 12, 2013, we published in the
In accordance with section 101(a)(5)(A) of the MMPA and our regulations at 50 CFR 18, subpart I, we
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (U.S. Fish and Wildlife Service) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. As required by the Paperwork Reduction Act of 1995 and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this IC. 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.
To ensure that we are able to consider your comments on this IC, we must receive them by January 4, 2016.
Send your comments on the IC to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, MS BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or
To request additional information about this IC, contact Hope Grey at
The Kodiak National Wildlife Refuge has partnered with Utah State University to conduct a public survey of visitors to the Kodiak National Wildlife Refuge who participate in bear viewing at structured and unstructured sites. Questions will address logistical aspects of bear viewing (including the amount of money visitors are willing to spend on viewing and amenities), satisfaction with current experiences (based on number of bears, density of other visitors, length of stay, and education received), and reported changes to attitudes and behavior related to bear conservation based on visitors' experiences on the refuge. Survey results are crucial to understanding public demands for and expectations of bear viewing, so that the refuge can better facilitate bear viewing opportunities and better convey educational messages on bear management.
We invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• 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. We will include or summarize each comment in our request to OMB to approve this IC. 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.
U.S. Geological Survey (USGS), Interior.
Notice of a revision of a currently approved information collection (1028-0095).
We (the U.S. Geological Survey) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. As required by the Paperwork Reduction Act (PRA) of 1995, and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this IC. This collection is scheduled to expire on March 31, 2016.
To ensure that your comments are considered, we must receive them on or before January 4, 2016.
You may submit comments on this information collection to the Information Collection Clearance Officer, U.S. Geological Survey, 12201 Sunrise Valley Drive MS 807, Reston, VA 20192 (mail); (703) 648-7197 (fax); or
Earl Greene, Chief, Office of External Research, U.S. Geological Survey, 5522 Research Park Drive, Baltimore, MD 21228 (mail); 443-498-5505 (phone);
The Water Resources Research Act of 1984, as amended (42 U.S.C. 10301
We are soliciting comments as to: (a) Whether the proposed collection of information is necessary for the agency to perform its duties, including whether the information is useful; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, usefulness, and clarity of the information to be collected; and (d) how to minimize the burden on the respondents, including the use of automated collection techniques or other forms of information technology.
Please note that the comments submitted in response to this notice are a matter of public record. Before including your personal mailing address, phone number, email address, or other personally identifiable information in your comment, you should be aware that your entire comment, including your personally identifiable information, may be made publicly available at any time. While you can ask us in your comment to withhold your personally identifiable information from public view, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act, Bureau of Land Management's (BLM) Pecos District Resource Advisory Council's (RAC) Lesser Prairie-Chicken (LPC) Habitat Preservation Area of Critical Environmental Concerns (ACEC) Livestock Grazing Subcommittee will meet as indicated below.
The RAC LPC ACEC subcommittee will meet on December 1, 2015, at 1:00 p.m. in the Roswell Field Office, 2909 West Second Street, Roswell, NM 88201. The public may send written comments to the Subcommittee at the BLM Pecos District Office, 2909 West 2nd Street, Roswell, New Mexico 88201.
Adam Ortega, Range Management Specialist, Roswell Field Office, Bureau of Land Management, 2909 West 2nd Street, Roswell, New Mexico 88201, 575-627-0204. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8229 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.
The 10-member Pecos District RAC elected to create a subcommittee to advise the Secretary of the Interior, through the BLM Pecos District, about possible livestock grazing within the LPC ACEC. Planned agenda includes a discussion of management strategies for the ACEC.
Bureau of Land Management, Interior.
Notice.
The plats of survey of lands described below are scheduled to be officially filed in the Bureau of Land Management, California State Office, Sacramento, California.
December 3, 2015.
A copy of the plats may be obtained from the California State Office, Bureau of Land Management, 2800 Cottage Way, Sacramento, California 95825, upon required payment.
Chief, Branch of Geographic Services, Bureau of Land Management, California State Office, 2800 Cottage Way W-1623, Sacramento, California 95825, 1-916-978-4310. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
A person or party who wishes to protest a survey must file a notice that they wish to protest with the Chief, Branch of Geographic Services. A statement of reasons for a protest may be filed with the notice of protest and must be filed with the Chief, Branch of Geographic Services within thirty days after the protest is filed. If a protest against the survey is received prior to the date of official filing, the filing will be stayed pending consideration of the protest. A plat will not be officially filed until the day after all protests have been dismissed or otherwise resolved. Before including your address, phone number, email address, or other 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.
T. 2 N., R. 16 E., dependent resurvey, subdivision of sections and metes-and-bounds survey, accepted September 30, 2014.
T. 1 S., R. 14 E., supplemental plat of section 2, accepted September 17, 2015.
T. 1 N., R. 16 E., dependent resurvey, subdivision of sections and metes-and-bounds survey, accepted October 1, 2015.
T. 23 N., R. 12 W., supplemental plat of a portion of the NW
T. 11 N., R. 5 W., supplemental plat of the NW
T. 12 N., R. 5 W., supplemental plat of the SW
T. 3 N., R. 5 E., dependent resurvey and subdivision of sections, accepted September 3, 2015.
T. 4 N., R. 5 E., dependent resurvey, subdivision of section 7 and metes-and-bounds survey, accepted September 24, 2015.
T. 13 S., R. 18 E., dependent resurvey, independent resurvey and metes-and-bounds survey, accepted October 14, 2015.
T. 11 N., R. 12 E., corrective resurvey, subdivision of section 25 and metes-and-bounds survey, accepted October 20, 2015.
43 U.S.C., chapter 3.
National Park Service, Interior.
Notice/request for public meeting and public comments—The National Christmas Tree Lighting and the subsequent 29-day event.
The National Park Service is seeking public comments and suggestions on the planning of the 2015 National Christmas Tree Lighting and the subsequent 29-day event. The general plan and theme for the event is the celebration of the holiday season
The meeting will be held on Friday, November 6, 2015. Written comments will be accepted until November 6, 2015.
The meeting will be held at 9:00 a.m. on November 6, 2015, in Room 234 of the National Capital Region Headquarters Building, at 1100 Ohio Drive SW., Washington, DC (East Potomac Park). Written comments may be sent to Peter Lonsway, Manager, President's Park, National Park Service, 1100 Ohio Drive SW., Washington, DC 20242. Due to delays in mail delivery, it is recommended that comments be provided by fax at (202) 208-1643 or by email to
Peter Lonsway, Manager, President's Park, National Park Service, weekdays between 9 a.m., and 4 p.m., at (202) 208-1631.
The National Park Service is seeking public comments and suggestions on the planning of the 2015 National Christmas Tree Lighting and the subsequent 29-day event, which opens on December 3, 2015, on the Ellipse (President's Park), south of the White House. The general plan and theme for the event is the celebration of the holiday season, where the park visitor will have the opportunity to view that lighting of the National Christmas tree, attend musical presentations and visit the yuletide displays of the traditional and familiar American symbols of Christmas, a national holiday. As in the past, these traditional and familiar American symbols will be the National Christmas Tree, the smaller trees representing the various states, District of Columbia and the territories, various seasonal musical presentations, and a traditional crèche which is not owned by the Government.
In order to facilitate this process the National Park Service will hold a meeting at 9:00 a.m. on November 6, 2015, in Room 234 of the National Capital Region Headquarters Building, at 1100 Ohio Drive SW., Washington, DC (East Potomac Park).
Persons who would like to comment at the meeting should notify the National Park Service by November 6, 2015, by calling Peter Lonsway at the White House Visitor Center weekdays between 9 a.m., and 4 p.m., at (202) 208-1631.
In addition, public comments and suggestions on the planning of the 2015 National Christmas Tree Lighting and the subsequent 29-day event may be submitted in writing. Written comments may be sent to the Manager, President's Park, National Park Service, 1100 Ohio Drive SW., Washington, DC 20242, and will be accepted until November 6, 2015. Before including your address, telephone number, email address, or other personal identifying information in your comment, be advised that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask in your comment to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so.
National Park Service, Interior.
Notice.
The Secretary of the Interior is giving notice of renewal of the Big Cypress National Preserve Off-Road Vehicle Advisory Committee to offer recommendations, alternatives and possible solutions to management of off-road vehicles at Big Cypress National Preserve.
Tamara Whittington, Superintendent, Big Cypress National Preserve, 33100 Tamiami Trail E, Ochopee, Florida 34141, (239) 695-1103.
The Big Cypress National Preserve Off-Road Vehicle Advisory Committee (Committee) has been established as directed in the
The
As part of the ORV management plan, the NPS committed to establishing the Committee. In addition, the establishment of the Committee fulfills the agency's policy of civic engagement. This Committee strengthens the relationship that the NPS has with its partners and communities. The Committee is composed of individuals that represent (1) sportsmen/ORV users; (2) landowners; (3) academia; (4) environmental advocates; (5) the State government, and (6) tribes.
Certification: I hereby certify that the renewal of the Big Cypress Off-Road Vehicle Advisory Committee is necessary and in the public interest in connection with the performance of duties imposed on the Department of the Interior by the National Park Service Organic Act (54 U.S.C. 100101(a)
National Park Service, Interior.
Cancellation of meeting.
In accordance with the Federal Advisory Committee Act (5 U.S.C. Appendix 1-16), notice is hereby given that the November 6, 2015, meeting of the Na Hoa Pili O Kaloko-Honokohau (The Friends of Kaloko-Honokohau) (Commission), an advisory commission for Kaloko-Honokohau National Historical Park (Park) previously announced in the
Jeff Zimpfer, Environmental Protection Specialist, Kaloko-Honoko-Honokohau National Historical Park, 73-4786 Kanalani St., #14, Kailua Kona, HI 96740, at (808) 329-6881, ext. 1500, or email
The Park was established by 16 U.S.C. 396d in November 1978. The Advisory Commission was established by section 396d(f) of that same law. The Commission was re-established by section 7401 of Public Law 111-11, the Omnibus Public Land Management Act of 2009, enacted March 30, 2009. The Commission's current termination date is December 31, 2018.
The purpose of the Commission is to advise the Director of the National Park Service with respect to the historical, archeological, cultural, and interpretive programs of the Park. The Commission is to afford particular emphasis to the quality of traditional native Hawaiian cultural practices demonstrated in the Park.
National Park Service, Interior.
Notice of public meetings.
Notice is hereby given by the National Park Service, in accordance with the Federal Advisory Committee Act (5 U.S.C. Appendix 1-16), that the Cedar Creek and Belle Grove National Historical Park Advisory Commission will hold quarterly meetings to discuss park projects and the implementation of the park's general management plan.
March 17, 2016.
Middletown Town Hall Council Chambers, 7875 Church Street, Middletown, VA 22645.
June 16, 2016.
Warren County Government Center, 220 North Commerce Avenue, Front Royal, VA 22630.
September 15, 2016.
Strasburg Town Hall Council Chambers, 174 East King Street, Strasburg, VA 22657.
December 15, 2016.
Middletown Town Hall Council Chambers, 7875 Church Street, Middletown, VA 22645.
Commission meetings will consist of the following:
Further information concerning the meetings may be obtained from Karen Beck-Herzog, Acting Site Manager, Cedar Creek and Belle Grove National Historical Park, P.O. Box 700, Middletown, Virginia 22645, telephone (540) 868-9176, or visit the park Web site:
The Commission was designated by Congress to provide advice to the Secretary of the Interior on the preparation and implementation of the park's general management plan and to advise on land protection. Individuals who are interested in the park, the implementation of the plan, or the business of the Commission are encouraged to attend the meetings. Interested members of the public may present, either orally or through written comments, information for the Commission to consider during the public meeting. Attendees and those wishing to provide comment are strongly encouraged to preregister through the contact information provided. Scheduling of public comments during the Commission meeting will be determined by the chairperson of the Commission.
Before including your address, telephone 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 view, we cannot guarantee that we will be able to do so.
National Park Service, Interior.
Notice.
The Texas Archeological Research Laboratory, The University of Texas at Austin, Austin, TX, has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the Texas Archeological Research Laboratory, The University of Texas at Austin, Austin, TX, at the address in this notice by December 3, 2015.
Marybeth Tomka, Head of Collections, Texas Archeological Research Laboratory, The University of Texas at Austin, 1 University Station, R7500, Austin, TX 78712, telephone (512) 475-6853, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the Texas Archeological Research Laboratory, The University of Texas at Austin, Austin, TX. The human remains were removed from Crosby, Mitchell, and Nolan Counties, TX.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Texas Archeological Research Laboratory, The University of Texas at Austin (TARL) professional staff, in consultation with representatives of the Apache Tribe of Oklahoma; Comanche Nation, Oklahoma; and the Kiowa Indian Tribe of Oklahoma.
In 1930, human remains representing, at minimum, one individual, were believed to be removed from site 41MH18, in Mitchell County, TX. Cyrus Ray and W.J. Van London visited an historic Native American burial previously found by Mr. Van London. The burial had apparently been disturbed before the joint visit. In a small, poorly documented collection, presumably made at the time of the visit, there are two extensively worn teeth, assumed to be from a single individual. No documentation exists concerning the transfer of these human remains to TARL. No known individual was identified. No associated funerary objects are present.
Diagnostic artifacts date the site to the mid-1800s. The location of the site is within the territory inhabited by both the Comanche and Kiowa Indians during the 1800s.
In 1985, human remains representing, at minimum, two individuals were removed by a University of Texas archeologist from the Church Peak site (41NL8), in Nolan County, TX. This site was originally documented by E.B. Sayles. Although Mr. Sayles had collected some materials from the site, none can be specifically linked to these interments. No known individuals were identified. No associated funerary objects are present.
The mode of interment and diagnostic artifacts found at the site date the site to the mid-1800s. The location of the site is within the territory inhabited by both the Comanche and Kiowa Indians during the 1800s.
In 1995, human remains representing, at minimum, one individual were transferred to TARL from Midwestern State University (MSU). The human remains are represented by one cranium. The human remains had been found on an unspecified date during construction of a road and were given to Walter Dalquest at MSU. Some of the long bones and about 25 copper bracelets had also been given to Dr. Dalquest, but by the time of the transfer to TARL they had been lost. The human remains came from an unspecified locality, apparently private land, several miles north of Crosbyton, in Crosby County, TX. No other details of the site are known. No known individual was identified. No associated funerary objects are present.
The preservation of the human remains and the recorded presence of copper wire bracelets date the site to the late 1800s. The location of the site is within the territory inhabited by both the Comanche and the Kiowa Indians during the 1800s.
Officials of the Texas Archeological Research Laboratory, The University of Texas at Austin have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of four individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Apache Tribe of Oklahoma; Comanche Nation, Oklahoma; and the Kiowa Indian Tribe of Oklahoma.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Marybeth Tomka, Head of Collections, Texas Archeological Research Laboratory, The University of Texas at Austin, 1 University Station, R7500, Austin, TX 78712, telephone (512) 475-6853, email
The Texas Archeological Research Laboratory, The University of Texas at Austin is responsible for notifying the Apache of Oklahoma; Comanche of Oklahoma; and the Kiowa of Oklahoma that this notice has been published.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the institution of investigations and commencement of preliminary phase antidumping and countervailing duty investigation Nos. 701-TA-550 and 731-TA-1304-1305 (Preliminary) pursuant to the Tariff Act of 1930 (“the Act”) to determine whether there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of certain iron mechanical transfer drive components (“IMTDCs”) from Canada and China, provided for in subheadings 8431.39.00, 8483.50.40, 8483.50.60, 8483.50.90, and 8483.90.80 of the Harmonized Tariff Schedule of the United States, that are alleged to be sold in the United States at less than fair value and that are alleged to be subsidized by the Government of China. Unless the Department of Commerce extends the time for initiation, the Commission must reach preliminary determinations in antidumping and countervailing duty investigations in 45 days, or in this case by December 14, 2015. The Commission's views must be transmitted to Commerce within five business days thereafter, or by December 21, 2015.
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of these investigations and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and B (19 CFR part 207).
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.12 of the Commission's rules.
By order of the Commission.
Institution of antidumping and countervailing duty investigations and scheduling of preliminary phase investigations.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the institution of investigations and commencement of preliminary phase antidumping and countervailing duty investigation Nos. 701-TA-549 and 731-TA-1299-1303 (Preliminary)
Justin Enck (202-3363), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
For further information concerning the conduct of these investigations and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and B (19 CFR part 207).
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.12 of the Commission's rules.
By order of the Commission.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice
60-day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until January 4, 2016.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Program Analyst Joe Romano, Bureau of Alcohol, Tobacco, Firearms and Explosives, 99 New York Avenue NE., Washington, DC 20226 at:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Evaluate whether and if so how the quality, utility, and clarity of the information to be collected can be enhanced; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
1.
2.
3.
Form number: None
Component: Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Department of Justice.
4.
Primary: Individuals or households.
Other: None.
Abstract: Primary: Individuals or households. Other: None. The National Response Team (NRT) survey is used to support a Bureau performance measure and to assess strengths and weaknesses of a major program of the Bureau of Alcohol, Tobacco, Firearms and Explosives.
5.
6.
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E-405B, Washington, DC 20530.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
60-day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until January 4, 2016.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Tracey Robertson, Chief, Federal Firearms Licensing Center, 244 Needy Road, Martinsburg, WV 25405, at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Evaluate whether and if so how the quality, utility, and clarity of the information to be collected can be enhanced; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
1.
2.
3.
Form number: ATF F 7CR (5310.16).
Component: Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Department of Justice.
4.
Primary: Individuals or households.
Other: None.
Abstract: Primary: Individuals or households. Other: None. The form is used by the public when applying for a Federal firearms license to collect curios and relics to facilitate a personal collection in interstate and foreign commerce. The information requested on the form establishes eligibility for the license.
5.
6.
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E-405B, Washington, DC 20530.
On October 26, 2015, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Northern District of Iowa in the lawsuit entitled
The United States, on behalf the United States Environmental Protection Agency (“EPA”), and the State of Iowa filed a complaint against the City of Waterloo seeking injunctive relief and the imposition of civil penalties for illegal discharges of pollutants, including untreated sewage, from the City's sanitary sewer system, and for violations of the conditions established in the City's National Pollutant Discharge Elimination System (“NPDES”) permit for the sewer system. The consent decree requires the City to conduct assessments of its sewer system and develop a plan of remedial measures to prevent future violations, and to pay $272,000 in settlement, split between the United States and the State of Iowa.
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $31.50 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy without the exhibits and signature pages, the cost is $11.25.
Notice.
The Department of Labor (DOL) is submitting the Employment and Training Administration (ETA) sponsored information collection request (ICR) revision titled, “YouthBuild Impact Evaluation: Youth Follow-Up Surveys,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before December 3, 2015.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-ETA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to
44 U.S.C. 3507(a)(1)(D).
This ICR seeks approval under the PRA for revisions to the YouthBuild Impact Evaluation: Youth Follow-Up Surveys information collection in order to complete administration of the 48-month follow-up survey. Data collected in the follow-up surveys will be used in impact analyses of the YouthBuild Program. This information collection has been classified as a revision, because of the addition of five new questions and the removal of 16 questions designed to facilitate future contact. Workforce Investment Act section 172 and Workforce Innovation and Opportunity Act section 169 authorize this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition,
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Notice.
The Department of Labor (DOL) is submitting the Office of Workers' Compensation Programs (OWCP) sponsored information collection request (ICR) titled, “Waiver of Service by Registered or Certified Mail,” 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 December 3, 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-OWCP, 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 Waiver of Service by Registered or Certified Mail information collection. An employer, insurance carrier, or an authorized representative completes Form LS-801 and forwards it to an OWCP District Director to waive service of orders by registered or certified mail in favor of receipt by email instead. A claimant or authorized representative completes Form LS-802 and forwards it to the District Director to waive service of orders by registered or certified mail in favor of email instead. Longshore and Harbor Workers' Compensation Act sections 19(e) and 39(a)(1) authorize this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on November 30, 2015. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
National Aeronautics and Space Administration.
Notice of Meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces a meeting of the Ad Hoc Task Force on Science, Technology, Engineering and Mathematics (STEM) of the NASA Advisory Council (NAC). This Task Force reports to the NAC.
Thursday, November 19, 2015, 1:00 p.m. to 3:30 p.m., EST.
Dr. Beverly Girten, Executive Secretary for the NAC Ad Hoc Task Force on STEM Education, NASA Headquarters, Washington, DC 20546, 202-358-0212, or
The meeting will be available telephonically and by WebEx. You must use a touch tone phone to participate in this meeting. Any interested person may dial the toll free access number 844-467-6272 or toll access number 720-259-6462, and then the numeric participant passcode: 329152 followed by the # sign. To join via, the link is
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
National Aeronautics and Space Administration.
Annual Invitation for Public Nominations by U.S. Citizens for Service on the NASA Advisory Council's Science Committee Subcommittees.
NASA announces its annual invitation for public nominations for service on the NASA Advisory Council's Science Committee subcommittees. Five science subcommittees report to the Science Committee of the NASA Advisory Council (NAC), a Federal advisory committee under the Federal Advisory Committee Act (FACA). U.S. citizens may submit self-nominations for consideration to fill intermittent vacancies on these five science subcommittees. NASA's science subcommittees have member vacancies from time to time throughout the year, and NASA will consider self-nominations to fill such intermittent vacancies.
The deadline for NASA receipt of all public nominations is November 23, 2015.
To be considered by NASA, self-nomination packages from interested U.S. citizens must be sent to NASA as an email and must include the name of the specific NAC science subcommittee of interest. Self-nomination packages are limited to specifying interest in only one NAC science subcommittee per year. The following information is required to be included as part of each self-nomination package: (1) A cover email including the name of the specific NAC science subcommittee of interest; (2) a professional resume (one-page maximum, included as an attachment); and, (3) a professional biography (one-page maximum; included as an attachment). All public self-nomination packages must be submitted electronically via email to NASA to one of the addresses listed below; paper-based documents sent through postal mail (hard-copies) will not be accepted. Note: Self-nomination packages that do not include the three (3) mandatory elements listed above will not receive further consideration by NASA. Please submit the nomination as a single package containing the cover email and both required attachments electronically to the specific email identified for the NAC science subcommittee of interest:
To obtain further information on NASA's science subcommittees, please visit the NAC Science Committee's subcommittee Web site noted below. For any questions, please contact Ms. Elaine Denning, Science Mission Directorate, NASA Headquarters, (202) 358-0332; or email
Nominees from any category of organizations or institutions within the U.S. are welcome, including, but not limited to, educational, industrial, and not-for-profit organizations, Federally Funded Research and Development Centers (FFRDCs), University Affiliated Research Centers (UARCs), NASA Centers, the Jet Propulsion Laboratory (JPL), and other Government agencies. Nominees need not be presently affiliated with any organization or institution.
The following qualifications/experience are highly desirable in nominees, and should be clearly presented in their self-nomination packages:
• At least 10 years post-Ph.D. research experience including publications in the scientific field of the subcommittee for which they are nominated, or comparable experience;
• Leadership in scientific and/or education and public outreach fields as evidenced by award of prizes, invitation to national and international meetings as speaker, organizer of scientific meetings/workshops, or comparable experience;
• Participation in NASA programs either as member of NASA mission science team, Research and Analysis program, membership on an advisory/working group or a review panel, or comparable experience;
• Good knowledge of NASA programs in the scientific field of the subcommittee for which they are applying, including the latest NASA Science Plan (available as a link from
• Knowledge of the latest Decadal Survey conducted by the National Academies or other relevant advisory reports for the scientific field of the subcommittee.
These are not full-time positions and the likelihood that a vacancy will occur in the coming year is unknown at this time. Successful nominees will be required to attend meetings of the subcommittee approximately two or three times a year, either in person (NASA covers travel-related expenses for this non-compensated appointment) or via telecon and/or virtual meeting medium. All successful nominees will be required to submit confidential financial disclosure forms, and undergo conflict of interest reviews by the NASA Office of the General Counsel, before their appointment is finalized. Successful nominees who are not U.S. Government employees will be formally appointed as Special Government Employees (SGEs).
NASA's five (5) science subcommittees are listed below. Additional information about these science subcommittees may be found at the NAC Science Committee's subcommittee Web site at
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9:30 a.m., Tuesday, November 17, 2015.
NTSB Conference Center, 429 L'Enfant Plaza SW., Washington, DC 20594.
The one item is open to the public.
Telephone: (202) 314-6100.
The press and public may enter the NTSB Conference Center one hour prior to the meeting for set up and seating.
Individuals requesting specific accommodations should contact Rochelle Hall at (202) 314-6305 or by email at
The public may view the meeting via a live or archived webcast by accessing a link under “News & Events” on the NTSB home page at
Schedule updates, including weather-related cancellations, are also available at
Candi Bing at (202) 314-6403 or by email at
Eric Weiss at (202) 314-6100 or by email at
Nuclear Regulatory Commission.
License amendment request; opportunity to comment, request a hearing, and petition for leave to intervene; order.
The U.S. Nuclear Regulatory Commission (NRC) received and is considering approval of five amendment requests. The amendment requests are for Dresden Nuclear Power Station, Units 2 and 3; Quad Cities Nuclear Power Station, Units 1 and 2; Nine Mile Point Nuclear Station, Unit 2; Cooper Nuclear Station; and Edwin I. Hatch Nuclear Plant, Unit 1. The NRC proposes to determine that each amendment request involves no significant hazards consideration. In addition, each amendment request contains sensitive unclassified non-safeguards information (SUNSI).
Comments must be filed by December 3, 2015. A request for a hearing must be filed by January 4, 2016. Any potential party as defined in § 2.4 of title 10 of the
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
• Federal Rulemaking Web site: Go to
• Mail comments to: Cindy Bladey, Office of Administration, Mail Stop: OWFN-12-H08, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Lynn Ronewicz, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1927, email:
Please refer to Docket ID NRC-2015-0240 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:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Please include Docket ID NRC-2015-0240, facility name, unit number(s), application date, and subject in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
Pursuant to Section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the NRC is publishing this notice. The Act requires the Commission to publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This notice includes notices of amendments containing SUNSI.
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated, or (2) create the possibility of a new or different kind of accident from any accident previously evaluated, or (3) involve a significant reduction in a margin of safety. The basis for this proposed determination for each amendment request is shown below.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish a notice of issuance in the
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license or combined license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also set forth the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that person's admitted contentions, including the opportunity to present evidence and to submit a cross-examination plan for cross-examination of witnesses, consistent with NRC regulations, policies, and procedures.
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Requests for hearing, petitions for leave to intervene, and motions for leave to file new or amended contentions that are filed after the 60-day deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i)-(iii).
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of any amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally-recognized Indian tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by January 4, 2016. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions for leave to intervene set forth in this section, except that under § 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. A State, local governmental body, Federally-recognized Indian tribe, or agency thereof may also have the opportunity to participate under 10 CFR 2.315(c).
If a hearing is granted, any person who does not wish, or is not qualified, to become a party to the proceeding may, in the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of position on the issues, but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Persons desiring to make a limited appearance are requested to inform the Secretary of the Commission by January 4, 2016.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For further details with respect to these license amendment applications, see the application for amendment which is available for public inspection at the NRC's PDR. For additional direction on obtaining information related to this document, see the “Obtaining Information and Submitting Comments,” section of this document.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change has no effect on any accident initiator or precursor previously evaluated and does not change the manner in which the core is operated. The type of fuel is not a precursor to any accident. The new methodologies for determining core operating limits have been validated to ensure that the output accurately models predicted core behavior, and use of the methodologies will be within the ranges previously approved. The new methodologies being referenced have all been submitted to the NRC, and have been approved.
The proposed changes to the TS associated with LHGR and the Main Turbine Bypass System, support the new analyses performed as part of the transition to ATRIUM 10XM fuel. These changes do not require modification to the plant and do not impact any initiators of an accident previously analyzed. Implementation of these changes will ensure that the basis for the accident and transient analyses are maintained throughout the operating cycle.
The proposed change to the ATWS-RPT high RPV [reactor pressure vessel] steam dome pressure does not require modification to the facility beyond the conservative reduction of the allowable value (AV). The proposed change will be implemented through revision of the associated surveillance test procedures, where the revised AV will replace the existing value.
Calculation of the AV to plant-specific parameters provides additional confidence that protective instrumentation that passes the surveillance testing criteria will perform its design function without exceeding the associated limit.
The revised AV for the ATWS-RPT is not considered an initiator to any previously analyzed accident and therefore, cannot increase the probability of any previously evaluated accident. Implementation of the revised AV will ensure that the instrumentation will perform its required function to meet the accident analysis assumptions. The proposed AV will ensure that the fuel is adequately cooled and over pressurization of the nuclear steam supply system is prevented following an accident or transient. The proposed change does not increase the probability of any accident previously evaluated.
There is no change in the consequences of an accident previously evaluated. The proposed change in the administratively controlled analytical methods does not affect the ability to successfully respond to previously evaluated accidents and does not affect radiological assumptions used in the evaluations. The source term from ATRIUM 10XM fuel will be bounded by the source term assumed in the accident analyses. Since the proposed change ensures the same level of protection as assumed in the accident analyses, the conclusions of the accident scenarios remain valid. As a result, no changes to radiological release parameters are involved. There is no effect on the type or amount of radiation released, and there is no effect on predicted offsite doses in the event of an accident.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not affect the performance of any DNPS or QCNPS structure, system, or component credited with mitigating any accident previously evaluated. The use of new analytical methods, which have been reviewed and approved by the NRC, for the design of a core reload will not affect the control parameters governing unit operation or the response of plant equipment to transient conditions. The proposed change does not introduce any new modes of system operation or failure mechanisms. The proposed TS changes ensure operation in compliance with the accident and transient analyses.
The proposed change to the ATWS-RPT AV does not involve any physical changes to the ATWS-RPT system or associated components beyond the reduction in the ATWSRPT AV for high reactor vessel steam dome pressure, or the manner in which the ATWS-RPT system functions. The proposed change will not alter the manner in which equipment operation is initiated nor will the functional demands on credited equipment be changed. The change in methods governing normal plant operation is consistent with the current ATWS analysis assumptions specified in the DNPS and QCNPS Updated Final Safety Analysis Report (UFSAR).
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change to TS 3.2.3 provides assurance the operating parameters are consistent with the inputs to the transient analyses which take credit for conservatisms in scram speed performance. The proposed change does not alter the acceptance criteria for control rod scram times. The proposed revision to TS 3.7.7 allows the flexibility to take credit for LHGR limits defined in the COLR based on the analyses supporting the transition to ATRIUM 10XM fuel. The proposed change to TS Section 5.6.5.b adds new analytical methods for design and analysis of core reloads to the list of methods currently used to determine the core operating limits. The NRC has previously approved the analytical methods being added.
The proposed change also lowers the ATWS-RPT AV for RPT on high reactor steam dome pressure. There is no decrease in the margin of safety, since the maximum reactor vessel pressure for a postulated ATWS event and ASME overpressure event is maintained below the acceptance criteria. The proposed change will be implemented through revisions to the associated surveillance test procedures where the revised AV replaces the existing AV. Since the availability of the ATWS-RPT system will be maintained and since the system design is unaffected, the proposed change ensures the instrumentation is capable of performing its intended function.
Since the setpoint at which the ATWS-RPT is activated is not a safety limit, the proposed change does not modify any safety limits at which protective actions are initiated, and does not change the requirements governing operation or availability of safety equipment assumed to operate to preserve the margin of safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based upon the above, EGC concludes that the proposed amendment presents no significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of no significant hazards consideration is justified.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The derivation of the cycle specific Safety Limit Minimum Critical Power Ratios (SLMCPRs) for incorporation into the Technical Specifications (TS), and their use to determine cycle specific thermal limits, has been performed using the methodology discussed in NEDE-24011-P-A, “General Electric Standard Application for Reactor Fuel,” Revision 21.
The basis of the SLMCPR calculation is to ensure that during normal operation and during abnormal operational transients, at least 99.9% of all fuel rods in the core do not experience transition boiling if the limit is not violated. The new SLMCPRs preserve the existing margin to transition boiling.
The Minimum Critical Power Ratio (MCPR) safety limit is reevaluated for each reload using NRC-approved methodologies. The analyses for NMP2, Cycle 16, have concluded that a two recirculation loop MCPR safety limit of ≥ [greater than or equal to] 1.15, based on the application of Global Nuclear Fuel's NRC-approved MCPR safety limit methodology, will ensure that this acceptance criterion is met. For single recirculation loop operation, a MCPR safety limit of ≥ 1.15 also ensures that this acceptance criterion is met. The MCPR operating limits are presented and controlled in accordance with the NMP2 Core Operating Limits Report (COLR).
The requested TS changes do not involve any plant modifications or operational changes that could affect system reliability or performance or that could affect the probability of operator error. The requested changes do not affect any postulated accident precursors, do not affect any accident mitigating systems, and do not introduce any new accident initiation mechanisms.
Therefore, the proposed TS changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The SLMCPR is a TS numerical value, calculated to ensure that during normal operation and during abnormal operational transients, at least 99.9% of all fuel rods in the core do not experience transition boiling if the limit is not violated. The new SLMCPRs are calculated using NRC-approved methodology discussed in NEDE-24011-P-A, “General Electric Standard Application for Reactor Fuel,” Revision 21. The proposed changes do not involve any new modes of operation, any changes to setpoints, or any plant modifications. The proposed revised MCPR safety limits have been shown to be acceptable for Cycle 16 operation. The core operating limits will continue to be developed using NRC-approved methods. The proposed MCPR safety limits or methods for establishing the core operating limits do not result in the creation of any new precursors to an accident.
Therefore, this change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
There is no significant reduction in the margin of safety previously approved by the NRC as a result of the proposed change to the SLMCPRs. The new SLMCPRs are calculated using methodology discussed in NEDE-24011-P-A, “General Electric Standard Application for Reactor Fuel,” Revision 21. The SLMCPRs ensure that during normal operation and during abnormal operational transients, at least 99.9% of all fuel rods in the core do not experience transition boiling if the limit is not violated, thereby preserving the fuel cladding integrity.
Therefore, the proposed TS changes do not involve a significant reduction in the margin of safety previously approved by the NRC.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed amendment revises the TS by replacing references to existing reactor vessel heatup and cooldown rate limits and P/T limit curves with references to the PTLR. In 10 CFR 50, Appendix G, requirements are established to protect the integrity of the reactor coolant pressure boundary (RCPB) in nuclear power plants.
Continued use of an Nuclear Regulatory Commission (NRC)-approved methodology for calculating P/T limit curves and relocating those curves to a PTLR provide an equivalent level of assurance that RCPB integrity will be maintained, as specified in 10 CFR 50, Appendix G.
The proposed amendment does not adversely affect accident initiators or precursors, and does not alter the design assumptions, conditions, or configuration of the plant or the manner in which the plant is operated and maintained. The ability of structures, systems, and components to perform their intended safety functions is not altered or prevented by the proposed changes, and the assumptions used in determining the radiological consequences of previously evaluated accidents are not affected.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The relocation of P/T limits to the PTLR is administrative in nature and does not alter or involve any design basis accident initiators. RCPB integrity will continue to be maintained in accordance with 10 CFR 50, Appendix G, and the accident performance of plant structures, systems, and components will not be affected. These changes do not involve any physical alteration of the plant, and installed equipment is not being operated in a new or different manner. Thus, no new failure modes are introduced.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed amendment is administrative in nature and does not affect the function of the RCPB or its response during plant transients. Continuing to calculate the P/T limits using NRC-approved methodology ensures adequate margins of safety relating to RCPB integrity are maintained. The proposed changes do not alter the manner in which safety limits, limiting safety system settings, or limiting conditions for operation are determined, there are no changes to set points at which protective actions are initiated, and the operability requirements for equipment assumed to operate for accident mitigation are not affected.
Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The proposed change does not involve a significant hazards consideration because:
1. The operation of HNP Unit 1 in accordance with the proposed amendment will not involve a significant increase in the probability or consequences of an accident previously evaluated.
The Safety Limit Minimum Critical Power Ratio (SLMCPR) ensures that, 99.9% of the fuel rods in the core will not be susceptible to boiling transition during normal operation or the most limiting postulated design-basis transient event. The new SLMCPR values preserve the existing margin to the onset of transition boiling; therefore, the probability of fuel damage is not increased as a result of this proposed change. The determination of the revised HNP Unit 1 SLMCPRs has been performed using NRC-approved methods of evaluation. These plant-specific calculations are performed each operating cycle and may require changes for future cycles. The revised SLMCPR values do not change the method of operating the plant; therefore, they have no
Based on the above, SNC has concluded that the proposed change will not result in a significant increase in the probability or consequences of an accident previously evaluated.
2. The operation of HNP Unit 1 in accordance with the proposed amendment will not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed changes result only from a specific analysis for the HNP Unit 1 core reload design. These changes do not involve any new or different methods for operating the facility. No new initiating events or transients result from these changes.
Based on the above, SNC has concluded that the proposed change will not create the possibility of a new or different kind of accident from those previously evaluated.
3. The operation of HNP Unit 1 in accordance with the proposed amendment will not involve a significant reduction in the margin of safety.
The new SLMCPRs have been calculated using NRC-approved methods of evaluation with plant and cycle-specific input values for the fuel and core design for the upcoming cycle of operation. The SLMCPR values ensure that 99.9% of the fuel rods in the core will not be susceptible to boiling transition during normal operation or the most limiting postulated design-basis transient event. The operating MCPR limit is set appropriately above the safety limit value to ensure adequate margin when the cycle-specific transients are evaluated. Accordingly, the margin of safety is maintained with the revised values.
As a result, SNC has determined that the proposed change will not result in a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing SUNSI.
B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request such access. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication of this notice will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.
C. The requester shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555-0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email address for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and
(3) The identity of the individual or entity requesting access to SUNSI and the requester's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly-available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention.
D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requestor may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 25 days after the requestor is granted access to that information. However, if more than 25 days remain between the date the petitioner is granted access to the information and the deadline for filing all other contentions (as established in the notice
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff after a determination on standing and need for access, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) The requester may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an administrative law judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) officer if that officer has been designated to rule on information access issues.
H. Review of Grants of Access. A party other than the requester may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed with the Chief Administrative Judge within 5 days of the notification by the NRC staff of its grant of access.
If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR part 2. Attachment 1 to this Order summarizes the general target schedule for processing and resolving requests under these procedures.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an amendment to Priority Mail Contract 128 negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On October 27, 2015, the Postal Service filed notice that it has agreed to an Amendment to the existing Priority Mail Contract 128 negotiated service agreement approved in this docket.
The Postal Service also filed the unredacted Amendment under seal. The Postal Service seeks to incorporate by reference the Application for Non-Public Treatment originally filed in this docket for the protection of information that it has filed under seal.
The Amendment implements changes as contemplated by the terms of the original contract.
The Postal Service intends for the Amendment to become effective one business day after the date that the Commission completes its review of the Notice. Notice at 1. The Postal Service asserts that the Amendment will not impair the ability of the contract to comply with 39 U.S.C. 3633.
The Commission invites comments on whether the changes presented in the Postal Service's Notice are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than November 5, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Cassie D'Souza to represent the interests of the general public (Public Representative) in this docket.
1. The Commission reopens Docket No. CP2015-92 for consideration of matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, the Commission appoints Cassie D'Souza to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
3. Comments are due no later than November 5, 2015.
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 (the “Act”),
The Exchange proposes to amend its Fees Schedule. 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 its Fees Schedule, effective October 20, 2015. Specifically, commencing October 20, 2015, the Exchange will list new options on three FTSE Russell Indexes. More specifically, the Exchange proposes to establish fees for the Russell 1000 Index (“RUI”), Russell 1000 Value Index (“RLV”) and Russell 1000 Growth Index (“RLG”).
By way of background, a specific set of proprietary products are commonly included or excluded from a variety of programs, qualification calculations and transactions fees. In lieu of listing out these products in various sections of the Fees Schedule, the Exchange uses the term “Underlying Symbol List A,” to represent these products. Currently, Underlying Symbol List A is defined in Footnote 34 and represents the following proprietary products: OEX, XEO, RUT, SPX (including SPXw), SPXpm, SRO, VIX, VXST, VOLATILITY INDEXES and binary options. The Exchange notes that the reason the products in Underlying Symbol List A are often collectively included or excluded from certain programs, qualification calculations and
The Exchange next proposes to establish transaction fees for RUI, RLV, and RLG. Particularly, the Exchange proposes to assess the same fees for RUI, RLV, and RLG as apply to Russell 2000 Index (“RUT”) options. Transaction fees for RUI, RLV, and RLG options will be as follows (all listed rates are per contract):
The Exchange also proposes to apply to RUI, RLV, and RLG, like RUT, the Floor Brokerage Fee of $0.04 per contract ($0.02 per contract for crossed orders). The Exchange also proposes to apply to RUI, RLV and RLG the CFLEX Surcharge Fee of $0.10 per contract for all RUI, RLV and RLG orders executed electronically on CFLEX, capped at $250 per trade (
The Exchange currently assesses an Index License Surcharge for RUT of $0.45 per contract for all non-customer orders. Because the fees associated with the license for RUI, RLV and RLG are lower than the license fees for RUT, the Exchange proposes to assess a Surcharge o [sic] $0.10 per contract in order to recoup the costs associated with the RUI, RLV and RLG license.
In order to promote and encourage trading of RUI, RLV and RLG, the Exchange proposes to waive all transaction fees (including the Floor Brokerage Fee, Index License Surcharge and CFLEX Surcharge Fee) for RUI, RLV and RLG transactions through December 31, 2015. The Exchange proposes to add Footnote 40 to the Fees Schedule to make clear that transaction fees will be waived through the end of the year.
Finally, the Exchange proposes to make other non-substantive cleanup changes to the Fees Schedule. First, the Exchange proposes to replace the reference to the proprietary products listed in the Customer row of the Index Options Rate Table—All Index Products Excluding Underlying Symbol List A with the term “Underlying Symbol List A”. The Exchange notes that when it had adopted the term “Underlying Symbol List A”, it had inadvertently not included it in this particular instance. To maintain consistency throughout the Fees Schedule, the Exchange proposes adding “Underlying Symbol List A” to the Customer row of the Index Options Rate Table—All Index Products Excluding Underlying Symbol List A. Next, the Exchange proposes to delete the reference to “RUT” in the Volume Incentive Program table and Footnote 36. The Exchange notes that it also inadvertently failed to delete these particular references to RUT when RUT became part of Underlying Symbol List A. As Underlying Symbol List A is already provided for in both sections (and RUT is included in Underlying Symbol List A) it is repetitive and unnecessary to maintain the additional references to “RUT”. The Exchange believes the proposed cleanup changes will alleviate potential confusion.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
Particularly, the Exchange believes it is reasonable to charge different fee amounts to different user types in the manner proposed because the proposed fees are consistent with the price differentiation that exists today for other index products, including RUT. The Exchange also believes that the proposed fee amounts for RUI, RLV and RLG orders are reasonable because the proposed fee amounts are the same [sic] already assessed for a similar product, RUT, as well as are within the range of amounts assessed for the Exchange's other proprietary products.
The Exchange believes that it is equitable and not unfairly
The Exchange believes that it is equitable and not unfairly discriminatory to, [sic] assess lower fees to Market-Makers as compared to other market participants other than Customers because Market-Makers, unlike other market participants, take on a number of obligations, including quoting obligations, that other market participants do not have. Further, these lower fees offered to Market-Makers are intended to incent Market-Makers to quote and trade more on the Exchange, thereby providing more trading opportunities for all market participants. Additionally, the proposed fee for Market-Makers will be applied equally to all Market-Makers (meaning that all Market-Makers will be assessed the same amount). This concept also applies to orders from all other origins. It should also be noted that all fee amounts described herein are intended to attract greater order flow to the Exchange in RUI, RLV and RLG which should therefore serve to benefit all Exchange market participants. Similarly, it is equitable and not unfairly discriminatory to assess lower fees to Clearing Trading Permit Holder Proprietary orders than those of other market participants (except Customers and Market-Makers) because Clearing Trading Permit Holders also have a number of obligations (such as membership with the Options Clearing Corporation), significant regulatory burdens, and financial obligations, that other market participants do not need to take on. The Exchange also notes that the RUI, RLV and RLG fee amounts for each separate type of market participant will be assessed equally to all such market participants (
The Exchange believes the proposed AIM transaction fees for Brokers Dealers, Non-Trading Permit Holder Market-Makers, Professionals/Voluntary Professionals, JBOs and Customers are reasonable because the amounts are still lower than assessed for AIM transactions in other proprietary products.
Assessing the Floor Brokerage Fee of $0.04 per contract for non-crossed orders and $0.02 per contract for crossed orders to Floor Brokers (and not other market participants) trading RUI, RLV and RLG orders is equitable and not unfairly discriminatory because only Floor Brokers are statutorily capable of representing orders in the trading crowd, for which they charge a commission. Moreover, this fee is already assessed, in the same amounts, to the other products in Underlying Symbol List A, including RUT.
The Exchange believes that assessing an Index License Surcharge Fee of $0.10 per contract to RUI, RLV and RLG transactions is reasonable because the Surcharge helps recoup some of the costs associated with the license for RUI, RLV and RLG options. Additionally, the Exchange notes that the Surcharge amount is the same as, and in some cases lower than, the amount assessed as an Index License Surcharge to other index products. The proposed Surcharge is also equitable and not unfairly discriminatory because the amount will be assessed to all market participants to whom the Surcharge applies. Not applying the RUI, RLV and RLG Index License Surcharge Fee to Customer orders is equitable and not unfairly discriminatory because this is designed to attract Customer RUI, RLV and RLG orders, which increases liquidity and provides greater trading opportunities to all market participants. Additionally, it is equitable and not unfairly discriminatory to assess a lower License Index Surcharge amount to RUI, RLV and RLG transactions as compared to RUT transactions because the costs of the license associated with RUT is greater.
Similarly, the Exchange believes assessing a CFLEX Surcharge Fee of $0.10 per contract for all RUI, RLV and RLG orders executed electronically on CFLEX and capping it at $250 (
Excepting RUI, RLV and RLG from the Liquidity Provider Sliding Scale, the Marketing Fee, the Fee Cap, and the exemption from fees for facilitation orders is reasonable because other Underlying Symbol List A products (
The Exchange believes it is reasonable, equitable and not unfairly discriminatory to waive all transaction fees, including the Floor Brokerage fee, the License Index Surcharge and CFLEX Surcharge Fee because it promotes and encourages trading of these new products and applies to all Trading Permit Holders (“TPHs”).
Applying to [sic] RUI, RLV and RLG to the CBOE Proprietary Products Sliding Scale is reasonable because it also applies to other Underlying Symbol List A products. This is equitable and not unfairly discriminatory for the same reason; it seems equitable to apply to RUI, RLV and RLG the same items on the Fees Schedule that apply to Underlying Symbol List A options classes (
The Exchange believes it's reasonable, equitable and not unfairly discriminatory to continue to include RUI, RLV and RLG in the calculation of the qualifying volume for the Floor Broker Trading Permit Fees rebate because the Exchange wishes to support and encourage open-outcry trading of RUI, RLV and RLG, which allows for price improvement and has a number of positive impacts on the market system.
Finally, the Exchange notes that it always strives for clarity in its rules and
The Exchange does not believe that the proposed rule changes will impose any burden on competition that are not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because, while different fees are assessed to different market participants in some circumstances, these different market participants have different obligations and different circumstances as discussed above. For example, Market-Makers have quoting obligations that other market participants do not have. The Exchange does not believe that the proposed rule change to waive all transaction fees through December 2015 will impose any burden on intramarket competition because it applies to all TPHs and encourages trading in these new products.
The Exchange does not believe that the proposed rule changes will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because RUI, RLV and RLG will be exclusively listed on CBOE. To the extent that the proposed changes make CBOE a more attractive marketplace for market participants at other exchanges, such market participants are welcome to become CBOE market participants.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) 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 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 extend the pilot period for the Exchange's Supplemental Competitive Liquidity Provider Program (the “Program”), which is currently set to
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.
On August 30, 2011, the Exchange received approval of rules applicable to the qualification, listing and delisting of securities of issuers on the Exchange.
The Program was approved by the Commission on a pilot basis running one-year from the date of implementation.
The Exchange established the Program in order to enhance liquidity on the Exchange in certain ETPs listed on the Exchange (and thereby enhance the Exchange's ability to compete as a listing venue) by providing a mechanism by which ETP CLPs compete for part of a daily quoting incentive on the basis of providing the most aggressive quotes with the greatest amount of size. Such competition has the ability to reduce spreads, facilitate the price discovery process, and reduce costs for investors trading in such securities, thereby promoting capital formation and helping the Exchange to compete as a listing venue. The Exchange believes that extending the pilot is appropriate because it will allow the Exchange and the Commission additional time to analyze data regarding the Program that the Exchange has committed to provide.
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 does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change extends an established pilot program for 3 months, thus allowing the Program to enhance competition in both the listings market and in competition for market makers. The Program will continue to promote competition in the listings market by providing issuers with a vehicle for paying the Exchange additional fees in exchange for incentivizing tighter spreads and deeper liquidity in listed securities and allow the Exchange to continue to compete with similar programs at Nasdaq Stock Market LLC
The Exchange also believes that extending the pilot program for an additional 3 months will allow the Program to continue to enhance competition among market participants by creating incentives for market makers to compete to make better quality markets. By continuing to require that market makers both meet the quoting requirements and also compete for the daily financial incentives, the quality of quotes on the Exchange will continue to improve. This, in turn, will attract more liquidity to the Exchange and further improve the quality of trading in exchange-listed securities participating in the Program, which will also act to bolster the Exchange's listing business.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from Members or other interested parties.
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) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative before 30 days from the date of the filing. However, pursuant to Rule 19b-4(f)(6)(iii),
The Exchange has asked the Commission to waive the 30-day operative delay. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest. Waiver of the operative delay will allow the Exchange to extend the Program prior to its expiration on October 28, 2015, which will ensure that the Program continues to operate uninterrupted while the Exchange and the Commission continue to analyze data regarding the Program. Therefore, the Commission hereby waives the 30-day operative delay and designates the proposed rule change to be operative upon filing with the Commission.
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 proposal 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.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c-1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and 12(d)(1)(B) of the Act.
Applicants request an order that would permit (a) series of certain open-end management investment companies to issue shares (“Shares”) redeemable in large aggregations only (“Creation Units”); (b) secondary market transactions in Shares to occur at negotiated market prices rather than at net asset value (“NAV”); (c) certain series to pay redemption proceeds, under certain circumstances, more than seven days after the tender of Creation Units for redemption; (d) certain affiliated persons of the series to deposit securities into, and receive securities from, the series in connection with the purchase and redemption of Creation Units; and (e) certain registered management investment companies and unit investment trusts outside of the same group of investment companies as the series to acquire Shares.
SPDR® Series Trust, SPDR® Index Shares Funds (together, the “Trusts”), SSGA Funds Management, Inc. (“Initial Adviser”) and State Street Global Markets, LLC (“Distributor”).
The application was filed on July 13, 2015, and amended on
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on November 23, 2015, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
The Commission: Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants: One Lincoln Street, Boston, MA 02111.
Robert Shapiro, Senior Counsel at (202) 551-7758, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. Each Trust is a business trust organized under the laws of the Commonwealth of Massachusetts and is registered with the Commission as an open-end management investment company that offers multiple series.
2. The Initial Adviser will be the investment adviser to the Initial Fund (defined below). The Initial Adviser is, and any other Adviser (defined below) will be, registered as an investment adviser under the Investment Advisers Act of 1940 (the “Advisers Act”). The Adviser may enter into sub-advisory agreements with one or more investment advisers to act as sub-advisers to particular Funds (each, a “Sub-Adviser”). Any Sub-Adviser will either be registered under the Advisers Act or will not be required to register thereunder.
3. The Distributor, a broker-dealer registered under the Securities Exchange Act of 1934 (“Exchange Act”) and a member of the Financial Industry Regulatory Authority, serves as the principal underwriter for the Trusts. The Distributor will not be affiliated with any Exchange (defined below).
4. Applicants request that the order apply to a new series, the Large Cap ETF (“Initial Fund”), and any additional series of a Trust, and any other open-end management investment company or series thereof, that may be created in the future (“Future Funds”), each of which will operate as an exchange traded fund (“ETF”) and will track a specified Affiliated Index (as defined below) comprised of domestic and/or foreign equity and/or fixed income securities (each, an “Underlying Index”). Any Future Fund will (a) be advised by the Initial Adviser, or an entity controlling, controlled by, or under common control with the Initial Adviser (each, an “Adviser”) and (b) comply with the terms and conditions of the application. The Initial Fund and Future Funds, together, are the “Funds.”
5. Each Fund will hold certain securities, currencies, other assets and other investment positions (“Portfolio Holdings”) selected to correspond to the performance of its Underlying Index. Certain of the Funds will be based on Underlying Indexes that will be comprised of equity and/or fixed income securities issued by one or more of the following categories of issuers: (i) Domestic issuers and (ii) non-domestic issuers meeting the requirements for trading in U.S. markets. Other Funds will be based on Underlying Indexes that will be comprised of foreign and domestic, or solely foreign, equity and/or fixed income securities (“Foreign Funds”).
6. Applicants represent that each Fund will invest at least 80% of its assets (excluding securities lending collateral) in the component securities of its respective Underlying Index (“Component Securities”) and TBA Transactions,
7. A Fund will utilize either a replication or representative sampling strategy to track its Underlying Index. A Fund using a replication strategy will invest in the Component Securities of its Underlying Index in the same approximate proportions as in such Underlying Index. A Fund using a representative sampling strategy will hold some, but not necessarily all, of the Component Securities of its Underlying Index. Applicants state that a Fund using a representative sampling strategy will not be expected to track the performance of its Underlying Index with the same degree of accuracy as would an investment vehicle that invested in every Component Security of the Underlying Index with the same weighting as the Underlying Index. Applicants expect that each Fund will have an annual tracking error relative to the performance of its Underlying Index of less than 5%.
8. The Funds will be entitled to use their Underlying Indexes pursuant to either a licensing agreement with the entity that compiles, creates, sponsors or maintains an Underlying Index (each, an “Index Provider”) or a sub-licensing arrangement with the Adviser, which has or will have a licensing agreement with such Index Provider.
9. Applicants recognize that the Funds could raise concerns regarding the ability of the Affiliated Index Provider to manipulate the Underlying Index to the benefit or detriment of a Fund. Applicants further recognize the potential for conflicts that may arise with respect to the personal trading activity of personnel of the Affiliated Index Provider who have knowledge of changes to an Underlying Index prior to the time that information is publicly disseminated.
10. Applicants propose that each day that the Trust, the NYSE and the national securities exchange (as defined in section 2(a)(26) of the Act) (an “Exchange”) on which the Fund's Shares are primarily listed (“Listing Exchange”) are open for business, including any day that a Fund is required to be open under section 22(e) of the Act (a “Business Day”), each Fund will post on its Web site, before commencement of trading of Shares on the Exchange, the identities and quantities of the Portfolio Holdings that will form the basis for the Fund's calculation of its NAV at the end of the Business Day.
11. In addition, applicants do not believe the potential for conflicts of interest raised by the Adviser's use of the Underlying Indexes in connection with the management of Funds and the Affiliated Accounts will be substantially different from the potential conflicts presented by an adviser managing two or more registered funds. Both the Act and the Advisers Act contain various protections to address conflicts of interest where an adviser is managing two or more registered funds and these protections will also help address these conflicts with respect to the Funds.
12. Each Adviser and any Sub-Adviser has adopted or will adopt, pursuant to rule 206(4)-7 under the Advisers Act, written policies and procedures designed to prevent violations of the Advisers Act and the rules thereunder. These include policies and procedures designed to minimize potential conflicts of interest among the Funds and the Affiliated Accounts, such as cross trading policies, as well as those designed to ensure the equitable allocation of portfolio transactions and brokerage commissions. In addition, the Initial Adviser has adopted policies and procedures as required under section 204A of the Advisers Act, which are reasonably designed in light of the nature of its business to prevent the misuse, in violation of the Advisers Act or the Exchange Act or the rules thereunder, of material non-public information by the Initial Adviser or associated persons (“Inside Information Policy”). Any other Adviser and/or Sub-Adviser will be required to adopt and maintain a similar Inside Information Policy. In accordance with the Code of Ethics
13. To the extent the Funds transact with an Affiliated Person of an Adviser or Sub-Adviser, such transactions will comply with the Act, the rules thereunder and the terms and conditions of the requested order. In this regard, each Fund's board of directors or trustees (“Board”) will periodically review the Fund's use of an Affiliated Index Provider. Subject to the approval of the Fund's Board, the Adviser, Affiliated Persons of the Adviser (“Adviser Affiliates”) and Affiliated Persons of any Sub-Adviser (“Sub-Adviser Affiliates”) may be authorized to provide custody, fund accounting and administration and transfer agency services to the Funds. Any services provided by the Adviser, Adviser Affiliates, Sub-Adviser and Sub-Adviser Affiliates will be performed in accordance with the provisions of the Act, the rules under the Act and any relevant guidelines from the staff of the Commission.
14. The Shares of each Fund will be purchased and redeemed in Creation Units and generally on an in-kind basis. Except where the purchase or redemption will include cash under the limited circumstances specified below, purchasers will be required to purchase Creation Units by making an in-kind deposit of specified instruments (“Deposit Instruments”), and shareholders redeeming their Shares will receive an in-kind transfer of specified instruments (“Redemption Instruments”).
15. Purchases and redemptions of Creation Units may be made in whole or in part on a cash basis, rather than in kind, solely under the following circumstances: (a) To the extent there is a Cash Amount; (b) if, on a given Business Day, the Fund announces before the open of trading that all purchases, all redemptions or all purchases and redemptions on that day will be made entirely in cash; (c) if, upon receiving a purchase or redemption order from an Authorized Participant, the Fund determines to require the purchase or redemption, as applicable, to be made entirely in cash;
16. Creation Units will consist of specified large aggregations of Shares,
17. Each Business Day, before the open of trading on the Listing Exchange, each Fund will cause to be published through the NSCC the names and quantities of the instruments comprising the Deposit Instruments and the Redemption Instruments, as well as the estimated Cash Amount (if any), for that day. The list of Deposit Instruments and Redemption Instruments will apply until a new list is announced on the following Business Day, and there will be no intra-day changes to the list except to correct errors in the published list. Each Listing Exchange or other major market data provider will disseminate, every 15 seconds during regular Exchange trading hours, through the facilities of the Consolidated Tape Association or other widely disseminated means, an amount for each Fund stated on a per individual Share basis representing the sum of (i) the estimated Cash Amount and (ii) the current value of the Deposit Instruments.
18. Transaction expenses, including operational processing and brokerage costs, will be incurred by a Fund when investors purchase or redeem Creation Units in-kind and such costs have the potential to dilute the interests of the Fund's existing shareholders. Each Fund will impose purchase or redemption transaction fees (“Transaction Fees”) in connection with effecting such purchases or redemptions of Creation Units. In all cases, such Transaction Fees will be limited in accordance with requirements of the Commission applicable to management investment companies offering redeemable securities. Since the Transaction Fees are intended to defray the transaction expenses as well as to prevent possible shareholder dilution resulting from the purchase or redemption of Creation Units, the
19. Shares of each Fund will be listed and traded individually on an Exchange. It is expected that one or more member firms of an Exchange will be designated to act as a market maker (each, a “Market Maker”) and maintain a market for Shares trading on the Exchange. Prices of Shares trading on an Exchange will be based on the current bid/offer market. Transactions involving the sale of Shares on an Exchange will be subject to customary brokerage commissions and charges.
20. Applicants expect that purchasers of Creation Units will include institutional investors and arbitrageurs. Market Makers, acting in their roles to provide a fair and orderly secondary market for the Shares, may from time to time find it appropriate to purchase or redeem Creation Units. Applicants expect that secondary market purchasers of Shares will include both institutional and retail investors.
21. Shares will not be individually redeemable, and owners of Shares may acquire those Shares from the Fund, or tender such Shares for redemption to the Fund, in Creation Units only. To redeem, an investor must accumulate enough Shares to constitute a Creation Unit. Redemption requests must be placed through an Authorized Participant. A redeeming investor may pay a Transaction Fee, calculated in the same manner as a Transaction Fee payable in connection with purchases of Creation Units.
22. Neither a Trust nor any Fund will be advertised or marketed or otherwise held out as a traditional open-end investment company or a “mutual fund.” Instead, each Fund will be marketed as an “ETF.” All marketing materials that describe the features or method of obtaining, buying or selling Creation Units, or Shares traded on an Exchange, or refer to redeemability, will prominently disclose that Shares are not individually redeemable and will disclose that the owners of Shares may acquire those Shares from the Fund or tender such Shares for redemption to the Fund in Creation Units only. The Funds will provide copies of their annual and semi-annual shareholder reports to DTC Participants for distribution to beneficial owners of Shares.
1. Applicants request an order under section 6(c) of the Act for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c-1 under the Act, under section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and (B) of the Act, and under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act.
2. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction, or any class of persons, securities or transactions, from any provision of the Act, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 17(b) of the Act authorizes the Commission to exempt a proposed transaction from section 17(a) of the Act if evidence establishes that the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policies of the registered investment company and the general provisions of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provisions of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors.
3. Section 5(a)(1) of the Act defines an “open-end company” as a management investment company that is offering for sale or has outstanding any redeemable security of which it is the issuer. Section 2(a)(32) of the Act defines a redeemable security as any security, other than short-term paper, under the terms of which the owner, upon its presentation to the issuer, is entitled to receive approximately a proportionate share of the issuer's current net assets, or the cash equivalent. Because Shares will not be individually redeemable, applicants request an order that would permit the Funds to register as open-end management investment companies and issue Shares that are redeemable in Creation Units only. Applicants state that investors may purchase Shares in Creation Units and redeem Creation Units from each Fund. Applicants further state that because Creation Units may always be purchased and redeemed at NAV, the price of Shares on the secondary market should not vary materially from NAV.
4. Section 22(d) of the Act, among other things, prohibits a dealer from selling a redeemable security that is currently being offered to the public by or through an underwriter, except at a current public offering price described in the prospectus. Rule 22c-1 under the Act generally requires that a dealer selling, redeeming or repurchasing a redeemable security do so only at a price based on its NAV. Applicants state that secondary market trading in Shares will take place at negotiated prices, not at a current offering price described in a Fund's prospectus, and not at a price based on NAV. Thus, purchases and sales of Shares in the secondary market will not comply with section 22(d) of the Act and rule 22c-1 under the Act. Applicants request an exemption under section 6(c) from these provisions.
5. Applicants assert that the concerns sought to be addressed by section 22(d) of the Act and rule 22c-1 under the Act with respect to pricing are equally satisfied by the proposed method of pricing Shares. Applicants maintain that while there is little legislative history regarding section 22(d), its provisions, as well as those of rule 22c-1, appear to have been designed to (a) prevent dilution caused by certain riskless-trading schemes by principal underwriters and contract dealers, (b) prevent unjust discrimination or preferential treatment among buyers, and (c) ensure an orderly distribution of investment company shares by eliminating price competition from dealers offering shares at less than the published sales price and repurchasing
6. Applicants believe that none of these purposes will be thwarted by permitting Shares to trade in the secondary market at negotiated prices. Applicants state that (a) secondary market trading in Shares does not involve a Fund as a party and will not result in dilution of an investment in Shares, and (b) to the extent different prices exist during a given trading day, or from day to day, such variances occur as a result of third-party market forces, such as supply and demand. Therefore, applicants assert that secondary market transactions in Shares will not lead to discrimination or preferential treatment among purchasers. Finally, applicants contend that the price at which Shares trade will be disciplined by arbitrage opportunities created by the option continually to purchase or redeem Shares in Creation Units, which should help prevent Shares from trading at a material discount or premium in relation to their NAV.
7. Section 22(e) of the Act generally prohibits a registered investment company from suspending the right of redemption or postponing the date of payment of redemption proceeds for more than seven days after the tender of a security for redemption. Applicants state that settlement of redemptions for Foreign Funds will be contingent not only on the settlement cycle of the United States market, but also on current delivery cycles in local markets for the underlying foreign securities held by a Foreign Fund. Applicants state that the delivery cycles currently practicable for transferring Redemption Instruments to redeeming investors, coupled with local market holiday schedules, may require a delivery process of up to fourteen (14) calendar days. Accordingly, with respect to Foreign Funds only, applicants hereby request relief under section 6(c) from the requirement imposed by section 22(e) to allow Foreign Funds to pay redemption proceeds within fourteen (14) calendar days following the tender of Creation Units for redemption.
8. Applicants believe that Congress adopted section 22(e) to prevent unreasonable, undisclosed or unforeseen delays in the actual payment of redemption proceeds. Applicants propose that allowing redemption payments for Creation Units of a Foreign Fund to be made within fourteen calendar days would not be inconsistent with the spirit and intent of section 22(e). Applicants suggest that a redemption payment occurring within fourteen calendar days following a redemption request would adequately afford investor protection.
9. Applicants are not seeking relief from section 22(e) with respect to Foreign Funds that do not effect creations and redemptions of Creation Units in-kind.
10. Section 12(d)(1)(A) of the Act prohibits a registered investment company from acquiring securities of an investment company if such securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company, or, together with the securities of any other investment companies, more than 10% of the total assets of the acquiring company. Section 12(d)(1)(B) of the Act prohibits a registered open-end investment company, its principal underwriter and any other broker-dealer from knowingly selling the investment company's shares to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies generally.
11. Applicants request an exemption to permit registered management investment companies and unit investment trusts (“UITs”) that are not advised or sponsored by the Adviser and are not part of the same “group of investment companies,” as defined in section 12(d)(1)(G)(ii) of the Act as the Funds (such management investment companies are referred to as “Investing Management Companies,” such UITs are referred to as “Investing Trusts,” and Investing Management Companies and Investing Trusts are collectively referred to as “Funds of Funds”), to acquire Shares beyond the limits of section 12(d)(1)(A) of the Act; and the Funds, and any principal underwriter for the Funds, and/or any Broker registered under the Exchange Act, to sell Shares to Funds of Funds beyond the limits of section 12(d)(1)(B) of the Act.
12. Each Investing Management Company will be advised by an investment adviser within the meaning of section 2(a)(20)(A) of the Act (the “Fund of Funds Adviser”) and may be sub-advised by investment advisers within the meaning of section 2(a)(20)(B) of the Act (each a “Fund of Funds Sub-Adviser”). Any investment adviser to an Investing Management Company will be registered under the Advisers Act. Each Investing Trust will be sponsored by a sponsor (“Sponsor”).
13. Applicants submit that the proposed conditions to the requested relief adequately address the concerns underlying the limits in sections 12(d)(1)(A) and (B), which include concerns about undue influence by a fund of funds over underlying funds, excessive layering of fees and overly complex fund structures. Applicants believe that the requested exemption is consistent with the public interest and the protection of investors.
14. Applicants believe that neither a Fund of Funds nor a Fund of Funds Affiliate would be able to exert undue influence over a Fund.
15. Applicants propose other conditions to limit the potential for undue influence over the Funds,
16. Applicants do not believe that the proposed arrangement will involve excessive layering of fees. The board of directors or trustees of any Investing Management Company, including a majority of the directors or trustees who are not “interested persons” within the meaning of section 2(a)(19) of the Act (“disinterested directors or trustees”), will find that the advisory fees charged under the contract are based on services provided that will be in addition to, rather than duplicative of, services provided under the advisory contract of any Fund in which the Investing Management Company may invest. In addition, under condition B.5., a Fund of Funds Adviser, or a Fund of Funds' trustee or Sponsor, as applicable, will waive fees otherwise payable to it by the Fund of Funds in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by a Fund under rule 12b-1 under the Act) received from a Fund by the Fund of Funds Adviser, trustee or Sponsor or an affiliated person of the Fund of Funds Adviser, trustee or Sponsor, other than any advisory fees paid to the Fund of Funds Adviser, trustee or Sponsor or its affiliated person by a Fund, in connection with the investment by the Fund of Funds in the Fund. Applicants state that any sales charges and/or service fees charged with respect to shares of a Fund of Funds will not exceed the limits applicable to a fund of funds as set forth in NASD Conduct Rule 2830.
17. Applicants submit that the proposed arrangement will not create an overly complex fund structure. Applicants note that no Fund will acquire securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent permitted by exemptive relief from the Commission permitting the Fund to purchase shares of other investment companies for short-term cash management purposes. To ensure a Fund of Funds is aware of the terms and conditions of the requested order, the Fund of Funds will enter into an agreement with the Fund (“FOF Participation Agreement”). The FOF Participation Agreement will include an acknowledgement from the Fund of Funds that it may rely on the order only to invest in the Funds and not in any other investment company.
18. Applicants also note that a Fund may choose to reject a direct purchase of Shares in Creation Units by a Fund of Funds. To the extent that a Fund of Funds purchases Shares in the secondary market, a Fund would still retain its ability to reject any initial investment by a Fund of Funds in excess of the limits of section 12(d)(1)(A) by declining to enter into a FOF Participation Agreement with the Fund of Funds.
19. Sections 17(a)(1) and (2) of the Act generally prohibit an affiliated person of a registered investment company, or an affiliated person of such a person, from selling any security to or purchasing any security from the company. Section 2(a)(3) of the Act defines “affiliated person” of another person to include (a) any person directly or indirectly owning, controlling or holding with power to vote 5% or more of the outstanding voting securities of the other person, (b) any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with the power to vote by the other person, and (c) any person directly or indirectly controlling, controlled by or under common control with the other person. Section 2(a)(9) of the Act defines “control” as the power to exercise a controlling influence over the management or policies of a company, and provides that a control relationship will be presumed where one person owns more than 25% of a company's voting securities. The Funds may be deemed to be controlled by the Adviser or an entity controlling, controlled by or under common control with the Adviser and hence affiliated persons of each other. In addition, the Funds may be deemed to be under common control with any other registered investment company (or series thereof) advised by an Adviser or an entity controlling, controlled by or under common control with an Adviser (an “Affiliated Fund”). Any investor, including Market Makers, owning 5% or holding in excess of 25% of the Trust or such Funds, may be deemed affiliated persons of the Trust or such Funds. In addition, an investor could own 5% or more, or in excess of 25% of the outstanding shares of one or more Affiliated Funds making that investor a Second-Tier Affiliate of the Funds.
20. Applicants request an exemption from sections 17(a)(1) and 17(a)(2) of the Act pursuant to sections 6(c) and 17(b) of the Act to permit persons that are Affiliated Persons of the Funds, or Second-Tier Affiliates of the Funds, solely by virtue of one or more of the following: (a) Holding 5% or more, or in excess of 25%, of the outstanding Shares of one or more Funds; (b) an affiliation with a person with an ownership interest described in (a); or (c) holding 5% or more, or more than 25%, of the shares of one or more Affiliated Funds, to effectuate purchases and redemptions “in-kind.”
21. Applicants assert that no useful purpose would be served by prohibiting such affiliated persons from making “in-kind” purchases or “in-kind” redemptions of Shares of a Fund in Creation Units. Both the deposit procedures for “in-kind” purchases of Creation Units and the redemption procedures for “in-kind” redemptions of Creation Units will be effected in exactly the same manner for all purchases and redemptions, regardless of size or number. There will be no discrimination between purchasers or redeemers. Deposit Instruments and Redemption Instruments for each Fund will be valued in the identical manner as those Portfolio Holdings currently held by such Fund and the valuation of the Deposit Instruments and Redemption Instruments will be made in an identical manner regardless of the identity of the purchaser or redeemer. Applicants do not believe that “in-kind” purchases and redemptions will result in abusive self-dealing or overreaching, but rather assert that such procedures will be implemented consistently with each Fund's objectives and with the general purposes of the Act. Applicants believe that “in-kind” purchases and redemptions will be made on terms reasonable to applicants and any affiliated persons because they will be valued pursuant to verifiable objective standards. The method of valuing
22. Applicants also seek relief under sections 6(c) and 17(b) from section 17(a) to permit a Fund that is an affiliated person, or an affiliated person of an affiliated person, of a Fund of Funds to sell its Shares to and redeem its Shares from a Fund of Funds, and to engage in the accompanying in-kind transactions with the Fund of Funds.
Applicants agree that any order of the Commission granting the requested relief will be subject to the following conditions:
1. The requested relief will expire on the effective date of any Commission rule under the Act that provides relief permitting the operation of affiliated index-based ETFs.
2. As long as a Fund operates in reliance on the requested order, Shares of such Fund will be listed on an Exchange.
3. Neither a Trust nor any Fund will be advertised or marketed as an open-end investment company or a mutual fund. Any advertising material that describes the purchase or sale of Creation Units or refers to redeemability will prominently disclose that Shares are not individually redeemable and that owners of Shares may acquire those Shares from the Fund and tender those Shares for redemption to a Fund in Creation Units only.
4. The Web site, which is and will be publicly accessible at no charge, will contain, on a per Share basis for each Fund, the prior Business Day's NAV and the market closing price or the midpoint of the bid/ask spread at the time of the calculation of such NAV (“Bid/Ask Price”), and a calculation of the premium or discount of the market closing price or Bid/Ask Price against such NAV.
5. Each Fund will post on the Web site on each Business Day, before commencement of trading of Shares on the Exchange, the Fund's Portfolio Holdings.
6. No Adviser or any Sub-Adviser to a Fund, directly or indirectly, will cause any Authorized Participant (or any investor on whose behalf an Authorized Participant may transact with the Fund) to acquire any Deposit Instrument for the Fund through a transaction in which the Fund could not engage directly.
1. The members of a Fund of Funds' Advisory Group will not control (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. The members of a Fund of Funds' Sub-Advisory Group will not control (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of a Fund, the Fund of Funds' Advisory Group or the Fund of Funds' Sub-Advisory Group, each in the aggregate, becomes a holder of more than 25 percent of the outstanding voting securities of a Fund, it will vote its Shares of the Fund in the same proportion as the vote of all other holders of the Fund's Shares. This condition does not apply to the Fund of Funds' Sub-Advisory Group with respect to a Fund for which the Fund of Funds' Sub-Adviser or a person controlling, controlled by or under common control with the Fund of Funds' Sub-Adviser acts as the investment adviser within the meaning of section 2(a)(20)(A) of the Act.
2. No Fund of Funds or Fund of Funds Affiliate will cause any existing or potential investment by the Fund of Funds in a Fund to influence the terms of any services or transactions between the Fund of Funds or Fund of Funds Affiliate and the Fund or a Fund Affiliate.
3. The board of directors or trustees of an Investing Management Company, including a majority of the disinterested directors or trustees, will adopt procedures reasonably designed to ensure that the Fund of Funds Adviser and Fund of Funds Sub-Adviser are conducting the investment program of the Investing Management Company without taking into account any consideration received by the Investing Management Company or a Fund of Funds Affiliate from a Fund or Fund Affiliate in connection with any services or transactions.
4. Once an investment by a Fund of Funds in the securities of a Fund exceeds the limits in section 12(d)(1)(A)(i) of the Act, the Board of the Fund including a majority of the directors or trustees who are not “interested persons” within the meaning of section 2(a)(19) of the Act (“non-interested Board members”), will determine that any consideration paid by the Fund to the Fund of Funds or a Fund of Funds Affiliate in connection with any services or transactions: (i) Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Fund; (ii) is within the range of consideration that the Fund would be required to pay to another unaffiliated entity in connection with the same services or transactions; and (iii) does not involve overreaching on the part of any person concerned.
5. The Fund of Funds Adviser, or trustee or Sponsor of an Investing Trust, as applicable, will waive fees otherwise payable to it by the Fund of Funds in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by a Fund under rule 12b-l under the Act) received from a Fund by the Fund of Funds Adviser, or trustee or Sponsor of the Investing Trust, or an affiliated person of the Fund of Funds Adviser, or trustee or Sponsor of the Investing Trust, other than any advisory fees paid to the Fund of Funds Adviser, trustee or Sponsor of an Investing Trust, or its affiliated person by the Fund in connection with the investment by the Fund of Funds in the Fund. Any Fund of Funds Sub-Adviser will waive fees otherwise payable to the Fund of Funds Sub-Adviser, directly or indirectly, by the Investing Management Company in an amount at least equal to any compensation received from a Fund by the Fund of Funds Sub-Adviser, or an affiliated person of the Fund of Funds Sub-Adviser, other than any advisory fees paid to the Fund of Funds Sub-Adviser or its affiliated person by the Fund in connection with the investment by the Investing Management Company in the Fund made at the direction of the Fund of Funds Sub-Adviser. In the event that the Fund of Funds Sub-Adviser waives fees, the benefit of the waiver will be passed through to the Investing Management Company.
6. No Fund of Funds or Fund of Funds Affiliate (except to the extent it is acting in its capacity as an investment adviser to a Fund) will cause a Fund to purchase a security in any Affiliated Underwriting.
7. The Board of a Fund, including a majority of the non-interested Board members, will adopt procedures reasonably designed to monitor any purchases of securities by the Fund in an Affiliated Underwriting, once an investment by a Fund of Funds in the securities of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The Board will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by the Fund of Funds in the Fund. The Board will consider, among other things: (i) Whether the purchases were consistent with the investment objectives and policies of the Fund; (ii) how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and (iii) whether the amount of securities purchased by the Fund in Affiliated Underwritings and the amount purchased directly from an Underwriting Affiliate have changed significantly from prior years. The Board will take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to ensure that purchases of securities in Affiliated Underwritings are in the best interest of shareholders of the Fund.
8. Each Fund will maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications to such procedures, and will maintain and preserve for a period of not less than six years from the end of the fiscal year in which any purchase in an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in Affiliated Underwritings once an investment by a Fund of Funds in the securities of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, setting forth from whom the securities were acquired, the identity of the underwriting syndicate's members, the terms of the purchase, and the information or materials upon which the Board's determinations were made.
9. Before investing in a Fund in excess of the limit in section 12(d)(1)(A), a Fund of Funds and the relevant Trust will execute a FOF Participation Agreement stating without limitation that their respective boards of directors or trustees and their investment advisers, or trustee and Sponsor, as applicable, understand the terms and conditions of the order, and agree to fulfill their responsibilities under the order. At the time of its investment in Shares of a Fund in excess of the limit in section 12(d)(1)(A)(i), a Fund of Funds will notify the Fund of the investment. At such time, the Fund of Funds will also transmit to the Fund a list of the names of each Fund of Funds Affiliate and Underwriting Affiliate. The Fund of Funds will notify the Fund of any changes to the list of the names as soon as reasonably practicable after a change occurs. The Fund and the Fund of Funds will maintain and preserve a copy of the order, the FOF Participation Agreement, and the list with any updated information for the duration of the investment and for a period of not less than six years thereafter, the first two years in an easily accessible place.
10. Before approving any advisory contract under section 15 of the Act, the board of directors or trustees of each Investing Management Company, including a majority of the disinterested directors or trustees, will find that the advisory fees charged under such contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Fund in which the Investing Management Company may invest. These findings and their basis will be fully recorded in the minute books of the appropriate Investing Management Company.
11. Any sales charges and/or service fees charged with respect to shares of a Fund of Funds will not exceed the limits applicable to a fund of funds as set forth in NASD Conduct Rule 2830.
12. No Fund will acquire securities of an investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent the Fund acquires securities of another investment company pursuant to exemptive relief from the Commission permitting the Fund to acquire securities of one or more investment companies for short-term cash management purposes.
For the Commission, by the Division of Investment Management, under delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17Ad-16 requires a registered transfer agent to provide written notice to the appropriate qualified registered securities depository when assuming or terminating transfer agent services on behalf of an issuer or when changing its name or address. In addition, transfer agents that provide such notice shall maintain such notice for a period of at least two years in an easily accessible place. This rule addresses the problem of certificate transfer delays caused by transfer requests that are directed to the wrong transfer agent or the wrong address.
We estimate that the transfer agent industry submits 6,970 Rule 17Ad-16 notices to appropriate qualified registered securities depositories. The staff estimates that the average amount of time necessary to create and submit each notice is approximately 15 minutes per notice. Accordingly, the estimated total industry burden is 1,743 hours per year (15 minutes multiplied by 6,970 notices filed annually).
Because the information needed by transfer agents to properly notify the appropriate registered securities depository is readily available to them and the report is simple and straightforward, the cost is relatively minimal. The average internal compliance cost to prepare and send a notice is approximately $7.50 (15 minutes at $30 per hour). This yields an industry-wide internal compliance cost estimate of $52,275 (6,970 notices multiplied by $7.50 per notice).
Written comments are invited on: (a) 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; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549, or send an email to:
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, November 5, 2015 at 2 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or her designee, has certified that, in her opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matter at the Closed Meeting.
Commissioner Piwowar, as duty officer, voted to consider the items listed for the Closed Meeting in closed session.
The subject matter of the Closed Meeting will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Adjudicatory matters;
Resolution of litigation claims; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551-5400.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 206(4)-2 (17 CFR 275.206(4)-2) under the Investment Advisers Act of 1940 (15 U.S.C. 80b-1
The rule exempts advisers from the rule with respect to clients that are registered investment companies. Advisers to limited partnerships, limited liability companies and other pooled investment vehicles are excepted from the account statement delivery and deemed to comply with the annual surprise examination requirement if the limited partnerships, limited liability companies or pooled investment vehicles are subject to annual audit by an independent public accountant registered with, and subject to regular inspection by the PCAOB, and the audited financial statements are distributed to investors in the pools.
Advisory clients use this information to confirm proper handling of their accounts. The Commission's staff uses the information obtained through this collection in its enforcement, regulatory and examination programs. Without the information collected under the rule, the Commission would be less efficient and effective in its programs and clients would not have information valuable for monitoring an adviser's handling of their accounts.
The respondents to this information collection are investment advisers registered with the Commission and have custody of clients' funds or securities. We estimate that 5,228 advisers would be subject to the information collection burden under rule 206(4)-2. The number of responses under rule 206(4)-2 will vary considerably depending on the number of clients for which an adviser has custody of funds or securities, and the number of investors in pooled investment vehicles that the adviser manages. It is estimated that the average number of responses annually for each respondent would be 6,830, and an average time of 0.02286 hour per response. The annual aggregate burden for all respondents to the requirements of rule 206(4)-2 is estimated to be 816,285 hours.
The estimated average burden hours are made solely for purposes of the Paperwork Reduction Act and are not derived from a comprehensive or even representative survey or study of the cost of Commission rules and forms.
Written comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, C/O Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549; or send an email to:
In notice document 2015-27221, appearing on pages 65828-65830 in the issue of Tuesday, October 27, 2015, make the following correction:
On page 65830, in the second column, in the eighth line from the bottom, “November 16, 2015” should read “November 17, 2015”.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 15c3-4 requires certain broker-dealers that are registered with the Commission as OTC derivatives dealers, or who compute their net capital charges under Appendix E to Rule 15c3-1 (17 CFR 240.15c3-1) (“ANC firms”), to establish, document, and maintain a system of internal risk management controls. The Rule sets forth the basic elements for an OTC derivatives dealer or an ANC firm to consider and include when establishing, documenting, and reviewing its internal risk management control system, which are designed to, among other things, ensure the integrity of an OTC derivatives dealer's or an ANC firm's risk measurement, monitoring, and management process, to clarify accountability at the appropriate organizational level, and to define the permitted scope of the dealer's activities and level of risk. The Rule also requires that management of an OTC derivatives dealer or an ANC firm must periodically review, in accordance with written procedures, the firm's business activities for consistency with its risk management guidelines.
The staff estimates that the average amount of time a new OTC derivatives dealer will spend establishing and documenting its risk management control system is 2,000 hours and that, on average, a registered OTC derivatives dealer will spend approximately 200 hours each year to maintain (
The staff believes that the internal cost of complying with Rule 15c3-4 will be approximately $283 per hour.
Written comments are invited on: (a) 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; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
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.
Please direct your written comments to: Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549, or send an email to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange Commission (the “Commission”) is soliciting comments on the collection of information summarized below. The Commission plans to submit this existing collection of information to the Office of Management and Budget for extension and approval.
Rule 3a-4 (17 CFR 270.3a-4) under the Investment Company Act of 1940 (15 U.S.C. 80a) (“Investment Company Act” or “Act”) provides a nonexclusive safe harbor from the definition of investment company under the Act for certain investment advisory programs. These programs, which include “wrap fee” programs, generally are designed to provide professional portfolio management services on a discretionary basis to clients who are investing less than the minimum investments for individual accounts usually required by the investment adviser but more than the minimum account size of most mutual funds. Under wrap fee and similar programs, a client's account is typically managed on a discretionary basis according to pre-selected investment objectives. Clients with similar investment objectives often receive the same investment advice and may hold the same or substantially similar securities in their accounts. Because of this similarity of management, some of these investment advisory programs may meet the definition of investment company under the Act.
In 1997, the Commission adopted rule 3a-4, which clarifies that programs organized and operated in accordance with the rule are not required to register under the Investment Company Act or comply with the Act's requirements. These programs differ from investment companies because, among other things, they provide individualized investment advice to the client. The rule's provisions have the effect of ensuring that clients in a program relying on the rule receive advice tailored to the client's needs.
For a program to be eligible for the rule's safe harbor, each client's account must be managed on the basis of the client's financial situation and investment objectives and in accordance with any reasonable restrictions the client imposes on managing the account. When an account is opened, the sponsor (or its designee) must obtain information from each client regarding the client's financial situation and investment objectives, and must allow the client an opportunity to impose reasonable restrictions on managing the account. In addition, the sponsor (or its designee) must contact the client annually to determine whether the client's financial situation or investment objectives have changed and whether the client wishes to impose any reasonable restrictions on the management of the account or reasonably modify existing restrictions. The sponsor (or its designee) must also notify the client quarterly, in writing, to contact the sponsor (or its designee) regarding changes to the client's financial situation, investment objectives, or restrictions on the account's management.
Additionally, the sponsor (or its designee) must provide each client with a quarterly statement describing all activity in the client's account during the previous quarter. The sponsor and personnel of the client's account manager who know about the client's account and its management must be reasonably available to consult with the client. Each client also must retain certain indicia of ownership of all securities and funds in the account.
The Commission staff estimates that 16,537,781 clients participate each year in investment advisory programs relying on rule 3a-4. Of that number, the staff estimates that 4,918,064 are new clients and 11,619,717 are continuing clients. The staff estimates that each year the investment advisory program sponsors'
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act. The estimate is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules and forms. 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 control number.
Written comments are invited on: (a) whether the collections of information are necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burdens of the collections of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burdens of the collections of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, C/O Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549; or send an email to:
Securities and Exchange Commission.
Notice; correction.
The Securities and Exchange Commission published a document in the
Sonia Trocchio, Division of Trading and Markets, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549, (202) 551-5648.
In the
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 123D to specify that Exchange systems may open one or more securities electronically if a Designated Market Maker registered in a security or securities cannot facilitate the opening of trading as required by Exchange rules. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included
The Exchange proposes to amend Rule 123D to specify that Exchange systems may open one or more securities electronically if a Designated Market Maker (“DMM”) registered in a security or securities cannot facilitate the open of trading as required by Exchange rules.
Currently, Rule 123D provides that openings may be effected manually or electronically. However, the current rule contemplates that openings would be facilitated by a DMM, as provided for in Rule 104(a)(2). The Exchange proposes to re-number Rule 123D to provide that current Rule 123D(1) would be re-numbered as Rule 123D(a), and the heading would be amended to be referred to as “Openings.”
The Exchange proposes to add a new paragraph (a)(2) to Rule 123D to provide that, if a DMM cannot facilitate the open of trading for one or more securities for which the DMM is registered, the Exchange would open those securities electronically on a quote or a trade as provided for in paragraphs (a)(3)-(a)(6) of the proposed Rule. Proposed Rule 123D(a)(2) would further provide that manually-entered Floor interest would not participate in any open effected electronically by the Exchange and if previously entered, would be ignored. Finally, proposed Rule 123D(a)(2) would provide that, unless otherwise specified, references to an open or opening in proposed Rules 123D(a)(3)-(a)(6) would also mean a reopening following a trading halt or pause.
Proposed Rule 123D(a)(3) would specify when the Exchange would open a security on a trade and would provide that the Exchange would open a security on a trade if there is buy and sell interest that can trade a round lot or more at a price that is no greater than or no less than a specified range (“Opening Price Range”) away from the last sale price on the Exchange (“Reference Price”). Proposed Rule 123D(a)(3) would further provide that the Exchange would determine the Opening Price Range parameters upon advance notice to market participants.
Unlike DMMs, who have the obligation to trade for their own account to supply liquidity as needed to facilitate openings,
Proposed Rule 123D(a)(3)(A)-(C) would specify how orders would participate if the Exchange opens a security on a trade. Proposed Rule 123D(a)(3)(A) would provide that if all interest guaranteed to participate in an opening trade under Rule 115A(b)
Because the Exchange would open a security within specified guidelines, not all interest that is intended for the open may participate in such an open. Proposed Rule 123D(a)(3)(C) would therefore provide that if interest that is otherwise guaranteed to participate in an opening trade under Rule 115A(b) would cause an opening price to be outside the Opening Price Range, such interest would not be guaranteed to participate in the opening trade. In that case, the Exchange proposes that the opening trade would be at the price at which the maximum volume of shares is tradable that is closest to the Reference Price and that orders would be allocated in the following priority, which is based on the priority of orders set forth in Rule 115A(b):
• Proposed Rule 123D(a)(3)(C)(i) would provide that Market and Market-on-Open (“MOO”) orders would trade first in time priority, provided that, during a Short Sale Period, sell short market orders and MOO orders would be adjusted to a Permitted Price
• Proposed Rule 123D(a)(3)(C)(ii) would provide that Stop Orders that
• Proposed Rule 123D(a)(3)(C)(iii) would provide that Limit Orders (including Reserve Orders) to buy (sell) and e-Quotes (including Reserve e-Quotes) to buy (sell) priced higher (lower) than the opening price would trade third on parity by agent under Rule 72(c).
• Proposed Rule 123D(a)(3)(C)(iv) would provide that G-quotes
• Finally, proposed Rule 123D(a)(3)(C)(v) would provide that all other limit interest that is priced equal to the opening price will trade last and be allocated consistent with Rule 115A(b)(1).
Proposed Rule 123D(a)(4) would describe when the Exchange would open a security electronically on a quote. First, proposed Rule 123D(a)(4)(A) would provide that if interest of less than a round lot pairs off at a price within the Opening Price Range, the Exchange would open on a quote. In this circumstance, after opening on a quote, interest of less than a round lot would trade at the price closest to the Reference Price (or at the Reference Price if the only interest is market orders), but would not be reported as an opening trade.
Proposed Rule 123D(a)(4)(B) would provide that the Exchange would open a security electronically on a quote if interest of any size pairs off at a price below (above) the lower (upper) boundary of the Opening Price Range, in which case, such paired-off interest would not trade.
Proposed Rule 123D(a)(4)(C) would provide that the Exchange would open a security electronically on a quote if there is no interest that can be quoted on either or both sides of the market. The proposed Rule would further specify that if an opening quote has a zero bid and/or a zero offer, it would not constitute an “Opening Price” as defined in Section I(I) of the Regulation NMS Plan to Address Extraordinary Market Volatility (the “Plan”).
Proposed Rule 123D(a)(5) would specify which information would be provided in advance of an opening or reopening. In order to provide transparency regarding the opening process, the Exchange proposes that during an opening effected by the Exchange, Order Imbalance Information pursuant to Rule 15(c) would be published.
Proposed Rule 123D(a)(6) would describe under which circumstances the Exchange would cancel orders after opening on a trade or quote. A proposed in new Rule 123D(a)(6)(A), all unexecuted Market Orders, MOO Orders, and LOO Orders would be cancelled. This would be new behavior following an Exchange-facilitated open because under a DMM-facilitated open, all Market and MOO Orders are guaranteed to participate and therefore there would not be any unexecuted Market Orders or MOO Orders following an opening. Proposed Rule 123D(a)(6)(B) would provide that after an opening on a trade, buy (sell) Limit Orders priced higher (lower) than the opening price would be cancelled. Lastly, proposed Rule 123D(a)(6)(C) would provide that if interest would have paired off at a price below (above) the lower (upper) boundary of the Opening Price Range, after opening on a quote, sell (buy) Limit Orders would be cancelled. The Exchange proposes to cancel only the side of the orders that would cause an opening price to be outside of the Opening Price Range parameters; the other side would not be cancelled and would be included in the opening quote.
The Exchange also proposes to delete current Rule 123D(3) and related Supplementary Material .24. Rule 123D(3) sets forth a non-regulatory trading halt condition titled “Investment Company Units or Index-Linked Securities Trading Condition” adopted to facilitate the listing and trading of all index-linked securities and ETFs from the Exchange to its affiliate NYSE Arca, Inc. (“NYSE Arca”) by December 31, 2007.
Because of the technology changes associated with the proposed rule change, the Exchange proposes to announce the implementation date via Trader Update.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed amendment to Rule 123D(a)(3) to provide that openings effected by the Exchange would be within a proposed numerical guideline would remove impediments to and perfect the mechanism of a free and open market because, similar to how Nasdaq and NYSE Arca Equities function, it would enable the Exchange to set parameters for an opening to assure that the potential prices that a security may open would not be significantly away from the Reference Price. Similarly, the Exchange believes that excluding interest eligible for the open that would cause an execution to occur outside the Opening Price Range parameters, even if such interest would otherwise be required to be included in an open effected by a DMM, would remove impediments to and perfect the mechanism of a fair and orderly market because it would assure that the Exchange could effect the open within the proposed specified price ranges. The proposed rule therefore promotes just and equitable principles of trade because it provides transparency to entering firms of whether interest would be eligible to participate in a closing transaction effected by the Exchange.
Finally, deleting an obsolete halt condition in 123D(3) and related Supplementary Material .24 removes impediments to and perfects the mechanism of a free and open market by removing confusion that may result from having obsolete references in the Exchange's rulebook. The Exchange further believes that the proposal removes impediments to and perfects the mechanism of a free and open market by ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public, can more easily navigate and understand the Exchange's rulebook. The Exchange believes that eliminating obsolete references would not be inconsistent with the public interest and the protection of investors because investors will not be harmed and in fact would benefit from increased transparency, thereby reducing potential confusion. Removing such obsolete references will also further the goal of transparency and add clarity to the Exchange's rules.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues but rather enable the Exchange to open trading where circumstances would prevent a DMM from facilitating an open.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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.
Notice by a Self-Regulatory Organization of Proposed Admission to or Continuance in Membership or Participation or Association With a Member of Any Person Subject to a Statutory Disqualification, and Applications to the Commission for Relief Therefrom
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 19h-1 (“Rule”) under the Securities Exchange Act of 1934 (the “Exchange Act”) prescribes the form and content of notices and applications by self-regulatory organizations (“SROs”) regarding proposed admissions to, or continuances in, membership, participation or association with a member of any person subject to a statutory disqualification.
The Commission uses the information provided in the submissions filed pursuant to Rule 19h-1 to review decisions of SROs to permit the entry into or continuance in the securities business of persons who have committed serious misconduct. The filings submitted pursuant to the Rule also permit inclusion of an application to the Commission for consent to associate with a member of an SRO notwithstanding a Commission order barring such association.
The Commission reviews filings made pursuant to the Rule to ascertain whether it is in the public interest to permit the employment in the securities business of persons subject to a statutory disqualification. The filings contain information that is essential to the staff's review and ultimate determination on whether an association or employment is in the public interest and consistent with investor protection. Without these filings, persons subject to a statutory disqualification could reenter or continue employment in the securities business without the Commission's critical review of their character, ability to act as a fiduciary, and their employer's plan of supervision. The failure to collect and review this information could result in significant harm to the investing public.
The Commission estimates the annual burden of responding to this collection of information is as follows.
Written comments are invited on: (a) Whether this collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information 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.
The Commission 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 OMB control number.
Persons submitting comments on the collection of information requirements should direct them to Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549, or send an email to:
In notice document 2015-26577, appearing on pages 63624-63626 in the issue of Tuesday, October 20, 2015, make the following correction:
On page 63626, in the third column, in the twenty-eighth line from the top, “October 23, 2015” should read “November 10, 2015”.
On August 28, 2015, NYSE Arca, Inc. (the “NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17Ad-2(c), (d), and (h) enumerates the requirements with which registered transfer agents must comply to inform the Commission or the appropriate regulator of a transfer agent's failure to meet the minimum performance standards set by the Commission rule by filing a notice.
The Commission receives approximately 3 notices a year pursuant to Rule 17Ad-2(c), (d), and (h). The estimated annual time burden of these filings on respondents is minimal in view of: (a) The readily available nature of most of the information required to be included in the notice (since that information must be compiled and retained pursuant to other Commission rules); and (b) the summary fashion in which such information must be presented in the notice (most notices are one page or less in length). In light of the above, and based on the experience of the staff regarding the notices, the Commission staff estimates that, on average, most notices require approximately one-half hour to prepare. Thus, the Commission staff estimates that the industry-wide total time burden is approximately 1.5 hours.
Written comments are invited on: (a) 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; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information on respondents; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549, or send an email to:
Pursuant to Section 19(b)(1)
The proposed rule change consists of a change to NSCC's Rule 2B of the Rules and Procedures (“Rules”) of NSCC to provide additional details regarding the requirement that Members participate in annual testing of NSCC's business continuity and disaster recovery plans (“BCP Testing”), as more fully described below.
In its filing with the Commission, NSCC 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. NSCC has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The proposed rule change would amend NSCC's Rule 2B (Ongoing Membership Requirements and Monitoring) to provide additional details regarding the requirement that NSCC Members participate in NSCC's annual BCP Testing. Currently, pursuant to Addendum B of the Rules, an applicant is qualified for membership with NSCC if it is “able to satisfactorily communication with the Corporation and fulfill anticipated commitments to and meet the operational requirements of the Corporation with necessary promptness and accuracy and to conform to any condition and requirement that the Corporation reasonably deems necessary for its protection.”
Recently, the Commission promulgated Regulation Systems Compliance and Integrity (“Reg. SCI”), which requires NSCC to establish standards to designate members
The proposed amendments to Rule 2B would increase transparency regarding BCP Testing, and ensure NSCC's practice with respect to such testing is consistent with Reg. SCI by setting forth NSCC's rights to: (i) Designate Members required to participate in BCP Testing using established standards; (ii) determine the scope and reporting of such BCP Testing; and (iii) require Members to comply with such BCP Testing within specified timeframes. In connection with these proposed amendments, NSCC would refine the factors that it currently uses to designate Members for BCP Testing. For example, while NSCC would continue to rely on activity-based thresholds to mandate participation with annual BCP Testing, NSCC would also take into account additional factors when designating firms for BCP Testing, including, but not limited to: (i) Significant operational issues of the Member during the past twelve months; and (ii) past performance of the Member with respect to BCP Testing. Members would be informed of the specific standards that would be used by NSCC, along with any updates or changes to these standards, which would be applied on a prospective basis, through established methods of communication between NSCC and its Members. Likewise, Members would be notified in advance that they have been designated to participate in BCP Testing for the upcoming year, and would be provided details concerning the nature of such testing as the particular test plans are determined.
NSCC believes the proposed rule change would have no impact on NSCC Members relative to what Members are currently required to do. As described above, NSCC already requires certain Members to participate in BCP Testing on an annual basis. The proposed rule change would provide further clarity with respect to these requirements for consistency with Reg. SCI.
Section 17A(b)(3)(F) of the Act, requires, in part, that NSCC's Rules be designed to promote the prompt and accurate clearance and settlement of securities transactions and to protect investors and the public interest.
Rule 17Ad-22(d)(2), promulgated under the Act, requires NSCC to require that its Members have robust operational capacity to meet obligations arising from participation in the clearing agency, to monitory that its participation requirements are met on an ongoing basis, and to have participation requirements that are objective and publicly disclosed.
Rule 1004(a) and (b) of Reg. SCI requires NSCC to establish standards for the designation of those Members that NSCC reasonably determines are, taken as a whole, the minimum necessary for the maintenance of fair and orderly markets in the event of the activation of its business continuity and disaster recovery plans, and to designate Members pursuant to those standards and require participation by such designated Members in scheduled BCP Testing annually.
By facilitating the testing of how business continuity and disaster recovery plans function between NSCC and its Members during an emergency, the proposed rule change would facilitate the prompt and accurate clearance and settlement of securities transactions and protect investors and the public interest consistent with of the Act. The proposed rule change would provide additional details to NSCC's Rules regarding the requirement for Members to take part in its BCP Testing annually, strengthening its compliance with Rule 17Ad-22(d)(2) and (4).
As such, NSCC believes that the proposed rule change is consistent with Section 17A(b)(3)(F) of the Act, Rule 17Ad-22(d)(2) and (d)(4), promulgated under the Act, and Rule 1004(a) and (b) of Reg. SCI, cited above.
NSCC does not believe that the proposed rule change would impose any burden on competition because the proposed rule change would apply to all Members and only provides additional details regarding an existing requirement.
Written comments were not and are not intended to be solicited with respect to the proposed rule change, and none have been 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)
A proposed rule change filed under Rule 19b-4(f)(6)
NSCC has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. According to NSCC, the proposed rule change does not present any novel or controversial issues. Rather, NSCC is merely providing additional details regarding BCP Testing requirements or adding provisions that are consistent with or required by Reg. SCI. 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 NSCC to incorporate changes required under Reg. SCI 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 Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 123D—Equities to specify that Exchange systems may open one or more securities electronically if a Designated Market Maker registered in a security or securities cannot facilitate the opening of trading as required by Exchange rules. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 123D—Equities (“Rule 123D”) to specify that Exchange systems may open one or more securities electronically if a Designated Market Maker (“DMM”) registered in a security or securities cannot facilitate the open of trading as required by Exchange rules.
Currently, Rule 123D provides that openings may be effected manually or electronically. However, the current rule contemplates that openings would be facilitated by a DMM, as provided for in Rule 104(a)(2)—Equities. The Exchange proposes to re-number Rule 123D to provide that current Rule 123D(1) would be re-numbered as Rule 123D(a), and the heading would be amended to be referred to as “Openings.”
The Exchange proposes to add a new paragraph (a)(2) to Rule 123D to provide that, if a DMM cannot facilitate the open of trading for one or more securities for which the DMM is registered, the Exchange would open those securities electronically on a quote or a trade as provided for in paragraphs (a)(3)—(a)(6) of the proposed Rule. Proposed Rule 123D(a)(2) would further provide that manually-entered Floor interest would not participate in any open effected electronically by the Exchange and if previously entered, would be ignored. Finally, proposed Rule 123D(a)(2) would provide that, unless otherwise specified, references to an open or opening in proposed Rules 123D (a)(3)—(a)(6) would also mean a reopening following a trading halt or pause.
Proposed Rule 123D(a)(3) would specify when the Exchange would open a security on a trade and would provide that the Exchange would open a security on a trade if there is buy and sell interest that can trade a round lot or more at a price that is no greater than or no less than a specified range (“Opening Price Range”) away from the last sale price on the Exchange (“Reference Price”). Proposed Rule 123D(a)(3) would further provide that the Exchange would determine the Opening Price Range parameters upon advance notice to market participants.
Unlike DMMs, who have the obligation to trade for their own account to supply liquidity as needed to facilitate openings,
Proposed Rule 123D(a)(3)(A)—(C) would specify how orders would participate if the Exchange opens a security on a trade. Proposed Rule 123D(a)(3)(A) would provide that if all interest guaranteed to participate in an opening trade under Rule 115A(b)
Because the Exchange would open a security within specified guidelines, not all interest that is intended for the open may participate in such an open. Proposed Rule 123D(a)(3)(C) would therefore provide that if interest that is otherwise guaranteed to participate in an opening trade under Rule 115A(b)—Equities would cause an opening price to be outside the Opening Price Range, such interest would not be guaranteed to participate in the opening trade. In that case, the Exchange proposes that the opening trade would be at the price at which the maximum volume of shares is tradable that is closest to the Reference Price and that orders would be allocated in the following priority, which is based on the priority of orders set forth in Rule 115A(b)—Equities:
• Proposed Rule 123D(a)(3)(C)(i) would provide that Market and Market-on-Open (“MOO”) orders would trade first in time priority, provided that, during a Short Sale Period, sell short market orders and MOO orders would be adjusted to a Permitted Price
• Proposed Rule 123D(a)(3)(C)(ii) would provide that Stop Orders that would be elected based on the opening price would trade second in time priority. As further proposed, during a Short Sale Period, sell short Stop Orders that are priced to a Permitted Price that would be lower than the opening price would trade after all other Stop Orders and before all other interest priced equal to or lower than the opening price.
• Proposed Rule 123D(a)(3)(C)(iii) would provide that Limit Orders (including Reserve Orders) to buy (sell) and e-Quotes (including Reserve e-Quotes) to buy (sell) priced higher (lower) than the opening price would trade third on parity by agent under Rule 72(c)—Equities.
• Proposed Rule 123D(a)(3)(C)(iv) would provide that G-quotes
• Finally, proposed Rule 123D(a)(3)(C)(v) would provide that all other limit interest that is priced equal to the opening price will trade last and be allocated consistent with Rule 115A(b)(1)—Equities.
Proposed Rule 123D(a)(4) would describe when the Exchange would open a security electronically on a quote. First, proposed Rule 123D(a)(4)(A) would provide that if interest of less than a round lot pairs off at a price within the Opening Price Range, the Exchange would open on a quote. In this circumstance, after opening on a quote, interest of less than a round lot would trade at the price closest to the Reference Price (or at the Reference Price if the only interest is market orders), but would not be reported as an opening trade.
Proposed Rule 123D(a)(4)(B) would provide that the Exchange would open a security electronically on a quote if interest of any size pairs off at a price below (above) the lower (upper) boundary of the Opening Price Range, in which case, such paired-off interest would not trade.
Proposed Rule 123D(a)(4)(C) would provide that the Exchange would open a security electronically on a quote if there is no interest that can be quoted on either or both sides of the market. The proposed Rule would further specify that if an opening quote has a zero bid and/or a zero offer, it would not constitute an “Opening Price” as defined in Section I(I) of the Regulation NMS Plan to Address Extraordinary Market Volatility (the “Plan”).
Proposed Rule 123D(a)(5) would specify which information would be provided in advance of an opening or reopening. In order to provide transparency regarding the opening process, the Exchange proposes that during an opening effected by the Exchange, Order Imbalance Information pursuant to Rule 15(c)—Equities would be published.
Proposed Rule 123D(a)(6) would describe under which circumstances the Exchange would cancel orders after opening on a trade or quote. A proposed in new Rule 123D(a)(6)(A), all unexecuted Market Orders, MOO Orders, and LOO Orders would be cancelled. This would be new behavior following an Exchange-facilitated open because under a DMM-facilitated open, all Market and MOO Orders are guaranteed to participate and therefore there would not be any unexecuted Market Orders or MOO Orders following an opening. Proposed Rule 123D(a)(6)(B) would provide that after an opening on a trade, buy (sell) Limit Orders priced higher (lower) than the opening price would be cancelled. Lastly, proposed Rule 123D(a)(6)(C) would provide that if interest would have paired off at a price below (above) the lower (upper) boundary of the Opening Price Range, after opening on a quote, sell (buy) Limit Orders would be cancelled. The Exchange proposes to cancel only the side of the orders that would cause an opening price to be outside of the Opening Price Range parameters; the other side would not be cancelled and would be included in the opening quote.
The Exchange also proposes to delete current Rule 123D(4), which sets forth a non-regulatory trading halt condition designated “Structured Products.” Rule 123D(4) was adopted to permit the halting of trading of exchange traded funds (“ETFs”) and structured products on the Exchange to facilitate the closing of the Exchange's former trading floor in connection with the acquisition of the Exchange by NYSE Euronext in 2008. Orders in ETFs and structured products subject to the trading halt condition are routed from the Exchange to its affiliate NYSE Arca, Inc. (“NYSE Arca”).
Because of the technology changes associated with the proposed rule change, the Exchange proposes to announce the implementation date via Trader Update.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed amendment to Rule 123D(a)(3) to provide that openings effected by the Exchange would be within a proposed numerical guideline would remove impediments to and perfect the mechanism of a free and open market because, similar to how Nasdaq and NYSE Arca Equities function, it would enable the Exchange to set parameters for an opening to assure that the potential prices that a security may open would not be significantly away from the Reference Price. Similarly, the Exchange believes that excluding interest eligible for the open that would cause an execution to occur outside the Opening Price Range parameters, even if such interest would otherwise be required to be included in an open effected by a DMM, would remove impediments to and perfect the mechanism of a fair and orderly market because it would assure that the Exchange could effect the open within the proposed specified price ranges. The proposed rule therefore promotes just and equitable principles of trade because it provides transparency to entering firms of whether interest would be eligible to participate in a closing transaction effected by the Exchange.
Finally, deleting an obsolete halt condition in Rule 123D(4) removes impediments to and perfects the mechanism of a free and open market by removing confusion that may result from having obsolete references in the Exchange's rulebook. The Exchange further believes that the proposal removes impediments to and perfects the mechanism of a free and open market by ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public, can more easily navigate and understand the Exchange's rulebook. The Exchange believes that eliminating obsolete references would not be inconsistent with the public interest and the protection of investors because investors will not be harmed and in fact would benefit from increased transparency, thereby reducing potential confusion. Removing such obsolete references will also further the goal of transparency and add clarity to the Exchange's rules.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues but rather enable the Exchange to open trading where circumstances would prevent a DMM from facilitating an open.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of American Power Corp. (CIK No. 1436174), a revoked Nevada corporation with its principal place of business listed as Denver, Colorado, with stock quoted on OTC Link (previously, “Pink Sheets”) operated by OTC Markets Group, Inc. (“OTC Link”) under the ticker symbol AMPW, because it has not filed any periodic reports since the period ended December 31, 2012. On October 22, 2014, the Division of Corporation Finance sent American Power a delinquency letter requesting compliance with their periodic filing obligations, but the letter was returned because of American Power's failure to maintain a valid address on file with the Commission, as required by Commission rules (Rule 301 of Regulation S-T, 17 CFR 232.301 and Section 5.4 of EDGAR Filer Manual).
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Locan, Inc. (CIK No. 1431837), a delinquent Delaware corporation with its principal place of business listed as Bartlesville, Oklahoma, with stock quoted on OTC Link under the ticker symbol LOCN, because it has not filed any periodic reports since the period ended December 31, 2012. On October 27, 2014, Locan received a delinquency letter sent by the Division of Corporation Finance requesting compliance with their periodic filing obligations.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies.
Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EDT on October 30, 2015, through 11:59 p.m. EST on November 12, 2015.
By the Commission.
Notice of the second meetings of the Environmental Affairs Council established pursuant to the United States-Korea Free Trade Agreement and of the Environmental Cooperation Commission established under the United States-Korea Environmental Cooperation Agreement, and request for comments.
The U.S. Department of State and the Office of the United States Trade Representative (USTR) are providing notice that the United States and the Republic of Korea (Korea) intend to hold the second meetings of the Environmental Cooperation Commission (ECC) and of the Environmental Affairs Council (EAC) in Seoul, Korea on November 10 and 11, 2015, respectively.
During the ECC meeting, the United States and Korea (collectively the Parties) will review the results of environmental cooperation under the 2013-2015 Work Program. The Parties also expect to approve a new 2016-2018 Work Program. During the EAC meeting, the Parties will discuss their respective implementation of and progress under the Environment Chapter (Chapter 20) of the United States-Korea Free Trade Agreement (FTA). All interested persons are invited to attend a public session on November 11, 2015 following the ECC and EAC meetings where they will have the opportunity to ask questions and discuss U.S.-Korean environmental cooperation and implementation of Chapter 20 with Commission and Council Members. For further information, please contact Tiffany Prather or Seth Patch (contact information below).
The Department of State and USTR invite interested organizations and members of the public to submit written comments or suggestions regarding implementation of Chapter 20, the Work Programs, the meeting agendas, or any issues that should be discussed at the meetings. In preparing comments or suggestions, submitters are encouraged to refer to: (1) The United States-Korea Environmental Cooperation Agreement (ECA); (2) the United States-Korea Environmental Cooperation Commission 2013-2015 Work Program; (3) the Environment Chapter of the United States-Korea FTA; and (4) the Final Environmental Review United States-Korea Free Trade Agreement. These documents are available at
The ECC and EAC meetings will be held on November 10 and 11, 2015, respectively, in Seoul, Korea at the Korea Press Center. Written comments and suggestions should be submitted no later than November 6, 2015 to facilitate consideration.
Written comments and suggestions should be submitted to both: (1) Tiffany Prather, Office of Environmental Quality and Transboundary Issues, U.S. Department of State, by electronic mail to
(2) Seth Patch, Office of Environment and Natural Resources, Office of the United States Trade Representative, by electronic mail to
If you have access to the Internet you can view and comment on this notice by going to:
Tiffany Prather, telephone (202) 647-4548.
Article 20.6.1 of the United States-Korea FTA establishes an EAC, which oversees implementation of Chapter 20 (Environment). The United States and Korea established the ECC when they signed the ECA, negotiated in concert with the FTA, on January 23, 2012. In Articles 3 and 4 of the ECA, the Parties state that they plan to meet to develop and update, as appropriate, a Work Program for Environmental Cooperation. The Work Program will identify and outline environmental cooperation priorities, on-going efforts, and possibilities for future cooperation.
Please refer to the Department of State Web site at
Department of the Treasury, Office of the Comptroller of the Currency.
Notice of Federal Advisory Committee Meeting.
The Office of the Comptroller of the Currency (OCC) announces a meeting of the Mutual Savings Association Advisory Committee (MSAAC).
A public meeting of the MSAAC will be held on Wednesday, November 18, 2015, beginning at 8:30 a.m. Eastern Standard Time (EST). Members of the public may submit written statements to the MSAAC. The OCC must receive written statements no later than Thursday, November 12, 2015. Members of the public who plan to attend the meeting, and members of the public who may require auxiliary aids, should contact the OCC by 5 p.m. EST on Thursday, November 12, 2015, to inform the OCC of their interest in attending the meeting and to provide the information that will be required to facilitate aid.
The OCC will hold the November 18, 2015 meeting of the MSAAC at the OCC's offices at 400 7th Street SW., Washington, DC 20219. Members of the public may submit written statements to
Michael R. Brickman, Deputy Comptroller for Thrift Supervision, (202) 649-5420, Office of the Comptroller of the Currency, Washington, DC 20219.
By this notice, the OCC is announcing that the MSAAC will convene a meeting on Wednesday, November 18, 2015, at the OCC's offices at 400 7th Street SW., Washington, DC 20219. The meeting is open to the public and will begin at 8:30 a.m. EST. The purpose of the meeting is for the MSAAC to advise the OCC on regulatory changes or other steps the OCC may be able to take to ensure the continued health and viability of mutual savings associations and other issues of
Members of the public who plan to attend the meeting should contact the OCC by 5 p.m. EST on Thursday, November 12, 2015, to inform the OCC of their desire to attend the meeting and to provide information that will be required to facilitate entry into the meeting. Members of the public may contact the OCC via email at
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that the Veterans' Rural Health Advisory Committee will meet on November 17-18, 2015, at 333 John Carlyle Street, Room 2001, Alexandria, Virginia from 8:30 a.m. to 5 p.m. on both days. The meeting is open to the public.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on health care issues affecting enrolled Veterans residing in rural areas. The Committee examines programs and policies that impact the provision of VA health care to enrolled Veterans residing in rural areas, and discusses ways to improve and enhance VA services for these Veterans.
The agenda will include updates from the Committee Chair and the Director of the Veterans Health Administration (VHA) Office of Rural Health (ORH), as well as presentations on general health care access and quality topics.
Public comments will be received at 4:30 p.m. on November 18, 2015. Individuals may submit a 1-2 page summary of their comments for inclusion in the official meeting record. Interested parties should contact Mr. Elmer D. Clark, by mail at 810 Vermont Avenue, Mail Code 10P1R, Washington, DC 20420, or by email at
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that the Special Medical Advisory Group will meet on November 24, 2015, in the Freedom Auditorium (on the fourth floor) at the Veterans Affairs Medical Center, 50 Irving Street NW., Washington DC 20422 from 9:00 a.m. to 3:30 p.m. ET. The meeting is open to the public.
The purpose of the Group is to advise the Secretary of Veterans Affairs and the Under Secretary for Health on the care and treatment of Veterans, and other matters pertinent to the Department's Veterans Health Administration (VHA).
On November 24, 2015, from 7:30 a.m. to 9:00 a.m. the Group will convene a closed door session in order to protect patient privacy as the Group tours the Washington, DC VA Medical Center 5 U.S.C. 552b(b)(6). At 9:00 a.m. the group will reconvene in an open session to review and discuss key points from the
Because the meeting is being held in a VA Medical Center, a photo I.D. may be requested at the entrance as a part of the clearance process. Therefore, you should plan to arrive 15 minutes before the meeting begins to allow time for this. Any member of the public wishing to attend the meeting or seeking additional information should contact Ms. Hyduke at (202) 461-7800 or by email.
The Department of Veterans Affairs gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that the Clinical Science Research and Development Service Cooperative Studies Scientific Evaluation Committee will hold a meeting on December 16, 2015, at the American Association of Airport Executives, 601 Madison Street, Alexandria, VA. The meeting will begin at 8:30 a.m. and end at 4:00 p.m.
The Committee advises the Chief Research and Development Officer through the Director of the Clinical Science Research and Development Service on the relevance and feasibility of proposed projects and the scientific validity and propriety of technical details, including protection of human subjects.
The session will be open to the public for approximately 30 minutes at the start of the meeting for the discussion of administrative matters and the general status of the program. The remaining portion of the meeting will be closed to the public for the Committee's review, discussion, and evaluation of research and development applications.
During the closed portion of the meeting, discussions and recommendations will deal with qualifications of personnel conducting the studies, staff and consultant critiques of research proposals and similar documents, and the medical records of patients who are study subjects, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. As provided by section 10(d) of Public Law 92-463, as amended, closing portions of this meeting is in accordance with 5 U.S.C. 552b(c)(6) and (c)(9)(B).
The committee will not accept oral comments from the public for the open portion of the meeting. Those who plan
Environmental Protection Agency.
Final rule.
This final rule, promulgated under the Clean Water Act (CWA), protects public health and the environment from toxic metals and other harmful pollutants, including nutrients, by strengthening the technology-based effluent limitations guidelines and standards (ELGs) for the steam electric power generating industry. Steam electric power plants contribute the greatest amount of all toxic pollutants discharged to surface waters by industrial categories regulated under the CWA. The pollutants discharged by this industry can cause severe health and environmental problems in the form of cancer and non-cancer risks in humans, lowered IQ among children, and deformities and reproductive harm in fish and wildlife. Many of these pollutants, once in the environment, remain there for years. Due to their close proximity to these discharges and relatively high consumption of fish, some minority and low-income communities have greater exposure to, and are therefore at greater risk from, pollutants in steam electric power plant discharges. The final rule establishes the first nationally applicable limits on the amount of toxic metals and other harmful pollutants that steam electric power plants are allowed to discharge in several of their largest sources of wastewater. On an annual basis, the rule reduces the amount of toxic metals, nutrients, and other pollutants that steam electric power plants are allowed to discharge by 1.4 billion pounds; it reduces water withdrawal by 57 billion gallons; and, it has social costs of $480 million and monetized benefits of $451 to $566 million.
The final rule is effective on January 4, 2016. In accordance with 40 CFR part 23, this regulation shall be considered issued for purposes of judicial review at 1 p.m. Eastern time on November 17, 2015. Under section 509(b)(1) of the CWA, judicial review of this regulation can be had only by filing a petition for review in the U.S. Court of Appeals within 120 days after the regulation is considered issued for purposes of judicial review. Under section 509(b)(2), the requirements in this regulation may not be challenged later in civil or criminal proceedings brought by EPA to enforce these requirements.
For technical information, contact Ronald Jordan, Engineering and Analysis Division, Telephone: 202-566-1003; Email:
Entities potentially regulated by this action include:
This section is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely regulated by this action. Other types of entities that do not meet the above criteria could also be regulated. To determine whether your facility is regulated by this action, you should carefully examine the applicability criteria listed in 40 CFR 423.10 and the definitions in 40 CFR 423.11 of the rule. If you still have questions regarding the applicability of this action to a particular entity, consult the person listed for technical information in the preceding
This rule is supported, in part, by the following documents:
• Technical Development Document for the Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (TDD), Document No. EPA-821-R-15-007.
• Environmental Assessment for the Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (EA), Document No. EPA-821-R-15-006.
• Benefits and Cost Analysis for the Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (BCA), Document No. EPA-821-R-15-005.
• Regulatory Impact Analysis for the Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (RIA), Document No. EPA-821-R-15-004.
EPA promulgates this rule under the authority of sections 301, 304, 306, 307, 308, 402, and 501 of the CWA, 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, and 1361.
Steam electric power plants
There are, however, affordable technologies that are widely available, and already in place at some plants, which are capable of reducing or eliminating steam electric power plant discharges. In the several decades since the steam electric ELGs were last revised, such technologies have increasingly been used at plants. This final rule is the first to ensure that plants in the steam electric industry employ technologies designed to reduce discharges of toxic metals and other harmful pollutants discharged in the plants' largest sources of wastewater.
Steam electric power plant discharges occur in proximity to nearly 100 public drinking water intakes and more than 1,500 public wells across the nation, and recent studies indicate that steam electric power plant discharges can adversely affect surface waters used as drinking water supplies. One study found that arsenic in ash and flue gas desulfurization (FGD) wastewater discharges from four steam electric power plants exceeded Safe Drinking Water Act (SDWA) Maximum Contaminant Levels (MCLS) in the waterbodies into which they discharged, indicating that these contaminants are present in surface waters, and at levels above standards used to protect drinking water. See DCN SE01984. A second, more recent study found increased levels of bromide in rivers used as drinking water after FGD systems were installed at upstream steam electric power plants. The study showed an increase in bromides at four drinking water utilities' intakes after wastewater from these FGD systems began to be discharged to the rivers, whereas prior to the FGD wastewater discharges, bromides were not a problem in the intake waters of the utilities. With bromides present in their drinking water source waters at increased levels, carcinogenic disinfection by-products (brominated DBPs, in particular trihalomethanes (THMs)) began forming, and at one drinking water utility, violations of the THM MCL began occurring. See DCN SE04503.
Nitrogen discharged by steam electric power plants can also impact drinking water sources by contributing to harmful algal blooms in reservoirs and lakes that are used as drinking water sources. Ground water contamination from surface impoundments (ash ponds) containing steam electric power plant wastewater also threatens drinking water, as evidenced by more than 30 documented cases. See EA Section 3.3.
Steam electric power plant discharges also adversely affect the quality of fish that people eat. Water quality modeling shows that about half of waterbodies that receive steam electric power plant discharges exhibit health risks to people consuming fish from those waters (primarily from mercury). Nearly half of waterbodies that receive steam electric power plant discharges exhibit pollutant levels for one or more steam electric power plant pollutants in excess of human health water quality criteria (WQC).
Steam electric power plant discharges adversely affect our nation's waters and their ecology. Pollutants in such discharges, particularly mercury and selenium, bioaccumulate in fish and wildlife, and they accumulate in the sediments of lakes and reservoirs, remaining there for decades. Documented adverse impacts include the near eradication of an entire fish population in the late 1970s in Belews Lake, North Carolina, due to selenium discharges from a steam electric power plant (DCN SE01842); a series of fish kills in the 1970s in Martin Lake, Texas, also due to selenium discharges from a steam electric power plant (elevated selenium levels and deformities persisted for at least eight years after the plant ceased discharging) (DCN SE01861); reproductive impairment and deformities in fish and birds from selenium discharges (DCN SE04519); and other forms of impacts to surface waters, as documented by numerous other damage cases associated with discharges from surface impoundments containing steam electric power plant wastewater. See EA Section 3.3.
Waterbodies receiving steam electric power plant discharges have routinely exhibited pollutant levels routinely in excess of state WQC for pollutants found in the plant discharges. This includes pollutants such as selenium, arsenic, and cadmium. Nutrients in steam electric power plant discharges can cause over-enrichment of receiving waters, resulting in water quality problems, such as low oxygen levels and loss of critical submerged aquatic vegetation, further impairing beneficial uses such as fishing. EPA's modeling corroborates such documented impacts, revealing that nearly one fifth of waterbodies receiving steam electric power plant discharges exceed WQC for protection of aquatic life and nearly one third of such receiving waters pose potential reproductive risks to birds that prey on fish.
The steam electric ELGs that EPA promulgated and revised in 1974, 1977, and 1982 are out of date. They do not adequately control the pollutants (toxic metals and other) discharged by this industry, nor do they reflect relevant process and technology advances that have occurred in the last 30-plus years. The rise of new processes for generating electric power (
To further its ultimate objective to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters,” the CWA authorizes EPA to establish national technology-based effluent limitations guidelines and new source performance standards for discharges from categories of point sources that occur directly into waters of the U.S. The CWA also authorizes EPA to promulgate nationally applicable pretreatment standards that control pollutant discharges from existing and new sources that discharge wastewater indirectly to waters of the U.S. through sewers flowing to publicly owned treatment works (POTWs). EPA establishes ELGs based on the performance of well-designed and well-operated control and treatment technologies.
EPA completed a study of the steam electric category in 2009 and proposed the ELG rule in June 2013. The public comment period extended for more than three months. This final rule reflects the statutory factors outlined in the CWA, as well as EPA's full consideration of the comments received and updated analytical results.
• For fly ash transport water, bottom ash transport water, and FGMC wastewater, there are two sets of BAT limitations. The first set of BAT limitations is a numeric effluent limitation on Total Suspended Solids (TSS) in the discharge of these wastewaters (these limitations are equal to the TSS limitations in the previously established Best Practicable Control Technology Currently Available (BPT) regulations). The second set of BAT limitations is a zero discharge limitation for all pollutants in these wastewaters.
• For FGD wastewater, there are two sets of BAT limitations. The first set of limitations is a numeric effluent limitation on TSS in the discharge of FGD wastewater (these limitations are equal to the TSS limitations in the previously established BPT regulations). The second set of BAT limitations is numeric effluent limitations on mercury, arsenic, selenium, and nitrate/nitrite as N in the discharge of FGD wastewater.
• For gasification wastewater, there are two sets of BAT limitations. The first set of limitations is a numeric effluent limitation on TSS in the discharge of gasification wastewater (this limitation is equal to the TSS limitation in the previously established BPT regulations). The second set of BAT limitations is numeric effluent limitations on mercury, arsenic, selenium, and total dissolved solids (TDS) in the discharge of gasification wastewater.
• A numeric effluent limitation on TSS in the discharge of combustion residual leachate from landfills and surface impoundments. This limitation is equal to the TSS limitation in the previously established BPT regulations.
For oil-fired generating units and small generating units (50 MW or smaller), the final rule establishes BAT limitations on TSS in the discharge of fly ash transport water, bottom ash transport water, FGMC wastewater, FGD wastewater, and gasification wastewater. These limitations are equal to the TSS limitations in the existing BPT regulations.
• A zero discharge standard for all pollutants in fly ash transport water, bottom ash transport water, and FGMC wastewater.
• Numeric standards on mercury, arsenic, selenium, and TDS in the discharge of FGD wastewater.
• Numeric standards on mercury and arsenic in the discharge of combustion residual leachate.
• A zero discharge standard for all pollutants in fly ash transport water, bottom ash transport water, and FGMC wastewater.
• Numeric standards on mercury, arsenic, selenium, and nitrate/nitrite as N in the discharge of FGD wastewater.
• Numeric standards on mercury, arsenic, selenium and TDS in the discharge of gasification wastewater.
Table III-1 summarizes the benefits and social costs for the final rule, at three percent and seven percent discount rates. EPA's analysis reflects the Agency's understanding of the actions steam electric power plants will take to meet the limitations and standards in the final rule. EPA based its analysis on a baseline that reflects the expected impacts of other environmental regulations affecting steam electric power plants, such as the Clean Power Plan (CPP) rule that the Agency finalized in July 2015 (as well as other relevant rules such as the Coal Combustion Residuals (CCR) rule that the Agency promulgated in April 2015). EPA understands that these modeled results have uncertainty due to the possibility of unexpected implementation approaches and thus that the actual costs could be somewhat higher or lower than estimated. The current estimate reflects the best data and analysis available at this time. In this preamble, EPA presents costs and monetized benefits accounting for these other rules.
The remainder of this preamble is structured as follows. Section IV provides additional background on the CWA and the ELG program. Section V outlines key updates since the proposal, including updates to the industry profile, estimated costs and economic impacts, and pollutant data. Section VI gives an overview of the industry, and Section VII reviews the identification and selection of the regulated pollutants. Section VIII describes the final rule requirements, along with the bases for EPA's decisions. Section IX presents the costs and economic impacts, while Section X shows the accompanying pollutant reductions. Section XI presents the numeric limitations and standards for existing and new sources that are established in this final rule. Sections XII through XIV explain the non-water quality environmental impacts (including energy requirements), the environmental assessment, and the resulting benefits analysis. Section XV presents results of the cost-effectiveness analysis, and Section XVI provides information regarding implementation of the rule.
Congress passed the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. 1251(a). In order to achieve this objective, the Act has, as a national goal, the elimination of the discharge of all pollutants into the nation's waters. 33 U.S.C. 1251(a)(1). The CWA establishes a comprehensive program for protecting our nation's waters. Among its core provisions, the CWA prohibits the discharge of pollutants from a point source to waters of the U.S., except as authorized under the CWA. Under section 402 of the CWA, 33 U.S.C. 1342, discharges may be authorized through a National Pollutant Discharge Elimination System (NPDES) permit. The CWA establishes a dual approach for these permits, technology-based controls that establish a floor of performance for all dischargers, and water quality-based effluent limitations, where the technology-based effluent limitations are insufficient to meet applicable WQS. To serve as the basis for the technology-based controls, the CWA authorizes EPA to establish national technology-based effluent limitations guidelines and new source performance standards for discharges from categories of point sources (such as industrial, commercial, and public sources) that occur directly into waters of the U.S.
The CWA also authorizes EPA to promulgate nationally applicable pretreatment standards that control pollutant discharges from sources that discharge wastewater indirectly to waters of the U.S., through sewers flowing to POTWs, as outlined in sections 307(b) and (c) of the CWA, 33 U.S.C. 1317(b) and (c). EPA establishes national pretreatment standards for those pollutants in wastewater from indirect dischargers that pass through, interfere with, or are otherwise incompatible with POTW operations. Generally, pretreatment standards are designed to ensure that wastewaters from direct and indirect industrial dischargers are subject to similar levels of treatment. See CWA section 301(b), 33 U.S.C. 1311(b). In addition, POTWs are required to implement local treatment limits applicable to their industrial indirect dischargers to satisfy any local requirements. See 40 CFR 403.5.
Direct dischargers (those discharging directly to surface waters) must comply with effluent limitations in NPDES permits. Indirect dischargers, who discharge through POTWs, must comply with pretreatment standards. Technology-based effluent limitations and standards in NPDES permits are derived from effluent limitations guidelines (CWA sections 301 and 304, 33 U.S.C. 1311 and 1314) and new source performance standards (CWA section 306, 33 U.S.C. 1316) promulgated by EPA, or based on best professional judgment (BPJ) where EPA has not promulgated an applicable effluent limitation guideline or new source performance standard (CWA section 402(a)(1)(B), 33 U.S.C. 1342(a)(1)(B)). Additional limitations are also required in the permit where necessary to meet WQS. CWA section 301(b)(1)(C), 33 U.S.C. 1311(b)(1)(C). The ELGs are established by EPA regulation for categories of industrial dischargers and are based on the degree of control that can be achieved using various levels of pollution control technology, as specified in the Act (
EPA promulgates national ELGs for major industrial categories for three classes of pollutants: (1) Conventional pollutants (TSS, oil and grease, biochemical oxygen demand (BOD
EPA establishes ELGs based on the performance of well-designed and well-operated control and treatment technologies. The legislative history of CWA section 304(b), which is the heart of the effluent guidelines program, describes the need to press toward higher levels of control through research and development of new processes, modifications, replacement of obsolete plants and processes, and other improvements in technology, taking into account the cost of controls. Congress has also stated that EPA need not consider water quality impacts on individual water bodies as the guidelines are developed; see Statement of Senator Muskie (principal author) (October 4, 1972), reprinted in Legislative History of the Water Pollution Control Act Amendments of 1972, at 170. (U.S. Senate, Committee on Public Works, Serial No. 93-1, January 1973).
There are four types of standards applicable to direct dischargers, and two types of standards applicable to indirect dischargers, described in detail below.
Traditionally, EPA establishes effluent limitations based on BPT by reference to the average of the best performances of facilities within the industry, grouped to reflect various ages, sizes, processes, or other common characteristics. EPA can promulgate BPT effluent limitations for conventional, toxic, and nonconventional pollutants. In specifying BPT, EPA looks at a number of factors. EPA first considers the cost of achieving effluent reductions in relation to the effluent reduction benefits. The Agency also considers the age of equipment and facilities, the processes employed, engineering aspects of the control technologies, any required process changes, non-water quality environmental impacts (including energy requirements), and such other factors as the Administrator deems appropriate. See CWA section 304(b)(1)(B), 33 U.S.C. 1314(b)(1)(B). If, however, existing performance is uniformly inadequate, EPA may establish limitations based on higher levels of control than what is currently in place in an industrial category, when based on an Agency determination that the technology is available in another category or subcategory and can be practically applied.
The 1977 amendments to the CWA require EPA to identify additional levels of effluent reduction for conventional pollutants associated with Best Conventional Pollutant Control Technology (BCT) for discharges from existing industrial point sources. In addition to other factors specified in section 304(b)(4)(B), 33 U.S.C. 1314(b)(4)(B), the CWA requires that EPA establish BCT limitations after consideration of a two-part “cost reasonableness” test. EPA explained its methodology for the development of BCT limitations on July 9, 1986 (51 FR 24974). Section 304(a)(4) designates the following as conventional pollutants: BOD
BAT represents the second level of stringency for controlling direct discharges of toxic and nonconventional pollutants. As the statutory phrase intends, EPA considers the technological availability and the economic achievability in determining what level of control represents BAT. CWA section 301(b)(2)(A), 33 U.S.C. 1311(b)(2)(A). Other statutory factors that EPA considers in assessing BAT are the cost of achieving BAT effluent reductions, the age of equipment and facilities involved, the process employed, potential process changes, non-water quality environmental impacts (including energy requirements), and such other factors as the Administrator deems appropriate. The Agency retains considerable discretion in assigning the weight to be accorded these factors.
NSPS reflect “the greatest degree of effluent reduction” that is achievable based on the “best available demonstrated control technology” (BADCT), “including, where practicable, a standard permitting no discharge of pollutants.” CWA section 306(a)(1), 33 U.S.C. 1316(a)(1). Owners of new facilities have the opportunity to install the best and most efficient production processes and wastewater treatment technologies. As a result, NSPS generally represent the most stringent controls attainable through the application of BADCT for all pollutants (that is, conventional, nonconventional, and toxic pollutants). In establishing NSPS, EPA is directed to take into consideration the cost of achieving the effluent reduction and any non-water quality environmental impacts and energy requirements. CWA section 306(b)(1)(B), 33 U.S.C. 1316(b)(1)(B).
Section 307(b) of the CWA, 33 U.S.C. 1317(b), authorizes EPA to promulgate pretreatment standards for discharges of pollutants to POTWs. PSES are designed to prevent the discharge of pollutants that pass through, interfere with, or are otherwise incompatible with the operation of POTWs. Categorical pretreatment standards are technology-based and are analogous to BPT and BAT effluent limitations guidelines, and thus the Agency typically considers the same factors in promulgating PSES as it considers in promulgating BAT. Congress intended for the combination of pretreatment and treatment by the POTW to achieve the level of treatment that would be required if the industrial source were making a direct discharge. Conf. Rep. No. 95-830, at 87 (1977), reprinted in U.S. Congress. Senate Committee on Public Works (1978), A
Section 307(c) of the CWA, 33 U.S.C. 1317(c), authorizes EPA to promulgate PSNS at the same time it promulgates NSPS. As is the case for PSES, PSNS are designed to prevent the discharge of any pollutant into a POTW that interferes with, passes through, or is otherwise incompatible with the POTW. In selecting the PSNS technology basis, the Agency generally considers the same factors it considers in establishing NSPS, along with the results of a pass-through analysis. Like new sources of direct discharges, new sources of indirect discharges have the opportunity to incorporate into their operations the best available demonstrated technologies. As a result, EPA typically promulgates pretreatment standards for new sources based on best available demonstrated control technology for new sources.
EPA provided a detailed history of the steam electric ELGs in the preamble for the proposed rule, including an explanation of why EPA initiated a steam electric ELG rulemaking following a detailed study in 2009. EPA published the proposed rule on June 7, 2013, and took public comments until September 20, 2013. 78 FR 34432. During the public comment period, EPA received over 200,000 comments. EPA also held a public hearing on July 9, 2013.
This section discusses key updates since EPA proposed its rule in June 2013, including how these updates are reflected in the final rule.
For the final rule, EPA adjusted the population of steam electric power plants that will likely incur costs and the associated benefits as a result of this final rule based on company announcements, as of August 2014, regarding changes in plant operations. The steam electric industry is a dynamic one, influenced by many factors, including electricity demand, fuel prices, availability of resources, and regulation. Since proposal, there have been some important changes in the overall industry profile. Some companies have retired or announced plans to retire specific steam electric generating units, as well as converted or announced plans to convert specific units to a different fuel source. See DCN SE05069 for information on the data sources for these announced retirements and conversions. In addition to actual or announced retirements and fuel conversions, in some cases, plants have altered, or announced plans to alter, their wastewater treatment or ash handling practices. To the extent possible, EPA adjusted its analyses of costs, pollutant loadings, non-water quality environmental impacts, and benefits for the final rule to account for these actual and anticipated changes. The final rule accounts for plant retirements and fuel conversions, as well as changes in plants' ash handling and wastewater treatment practices, expected to occur by the implementation dates in the final rule. For more details, see TDD Section 4.5 or “Changes to Industry Profile for Steam Electric Generating Units for the Steam Electric Effluent Guidelines Final Rule,” DCN SE05059.
EPA made every effort to appropriately account for other rules in its many analyses for this rule. Since proposal, EPA has promulgated other rules affecting the steam electric industry: the Cooling Water Intake Structures (CWIS) rule for existing facilities (79 FR 48300; Aug. 15, 2014), the CCR rule (80 FR 21302; Apr. 17, 2015), the CPP rule (see
There have been advancements in several technologies since proposal that reinforce EPA's decision regarding those technologies that serve as the appropriate basis for the final rule. For proposal, EPA evaluated a variety of technologies available to control and treat wastewater generated by the steam electric industry. The final rule is based on several treatment technologies discussed in depth at proposal. As explained then, and further discussed in Section VIII, the record demonstrates that the technologies that form the basis for the final rule are available. Moreover, the record indicates that, based on the emerging market for treatment technologies, plants will have many options to choose from when deciding how to meet the requirements of the final rule.
The biological treatment technology that serves as part of the basis for the final requirements for FGD wastewater
Zero valent iron (ZVI) cementation, sorption media, ion exchange, and electrocoagulation are also examples of emerging treatment technologies that are being developed to treat FGD wastewater, and they could be used to achieve the limitations in the final rule. See TDD Section 7 for a more detailed discussion.
The technologies used as the basis for the final requirements for ash transport water (dry handling and closed-loop systems) have been in operation at power plants for more than 20 years and are amply demonstrated by the record supporting the final rule. Recent advancements related to bottom ash handling technologies have focused on providing more flexible retrofit solutions and improving the thermal efficiency of the boiler operation. These advancements result in additional savings related to electricity use, operation and maintenance, water costs, and thermal energy recovery.
In sum, the record demonstrates that there have been significant advancements in relevant treatment technologies since proposal, and EPA expects that the advancements will continue as this rule is implemented by the industry.
For the final rule, EPA updated its cost estimates to account for public comments. The following list summarizes the main adjustments EPA made to its cost estimates for the final rule:
• Adjustment of population of generating units and changes in wastewater treatment or ash handling practices to account for company-announced generating unit retirements/repowerings and conversions of ash handling systems (see Section IV.A);
• Adjustment of population of generating units and changes in wastewater treatment or ash handling practices to account for implementation of the CCR rule and CPP rule (see Section IV.B);
• Adjustments to the direct capital costs factors to better reflect all associated installation costs;
• Adjustments to the indirect capital cost factors to account for appropriate engineering and contingency costs;
• Adjustment to plant population receiving one-time bottom ash management costs;
• Addition of costs for denitrification pretreatment prior to biological treatment of FGD wastewater (for certain plants);
• Updates to costing inputs to account for costs of additional redundancy for the fly ash dry handling system;
• Addition of tank rental costs for surge capacity during certain bottom ash handling system maintenance;
• Addition of building costs for certain bottom ash and FGD wastewater systems; and
• Addition of costs for equipment that can be used to mitigate high oxidation-reduction potential (ORP) levels in FGD wastewater.
See Section 9 of the TDD for additional information on the plant-specific compliance cost estimates for the final rule.
For its analysis of the economic impact of the final rule, EPA began with the same financial data sources for steam electric power plants and their parent companies that were used and described in the proposed rule, primarily collected through the
For the final rule, EPA incorporated data submitted by public commenters in its effluent limitations and standards development, pollutants of concern identification, and pollutant loadings estimates. Such data include:
• Industry-submitted data representing the FGD purge, FGD chemical precipitation effluent, and FGD biological treatment effluent for the plants identified as operating BAT systems;
• Industry-submitted ash transport water characterization and source water data;
• Industry-submitted ash impoundment effluent concentrations; and
• Industry-submitted pilot-test data related to treatment of FGD wastewater.
EPA subjected the new data to its data quality acceptance criteria and, as appropriate, updated its analyses accordingly. See TDD Section 3 for additional information on the data sources used in the development of the final rule.
Although not required to do so, EPA conducted an Environmental Assessment for the final rule, as it did for the proposed rule. EPA updated the environmental assessment in several ways to respond to public comments, and improve the characterization of the environmental and human health improvements associated with the final rule. EPA performed dynamic water quality modeling of selected case-study locations to supplement the results of the national-scale Immediate Receiving Water (IRW) model. EPA supplemented the wildlife analysis by developing and using an ecological risk model that predicts the risk of reproductive impacts among fish and birds with dietary exposure to selenium from steam electric power plant wastewater discharges. EPA also updated and improved several input parameters for the IRW model, including fish consumption rates for recreational and subsistence fishers, the bioconcentration factor for copper, and benchmarks for assessing the potential for impacts to benthic communities in receiving waters. See Section XIII.A for additional discussion.
EPA provided a general description of the steam electric industry in the proposed rule and provides a complete discussion of the industry in TDD Section 4. As described in TDD Section 4.5 (and Section V.A, above), EPA considered retirements, fuel conversions, ash handling conversions, wastewater treatment updates, and other industry profile changes in the development of the final rule and supporting technical analyses; however, the data presented in the general industry description represents 2009 conditions, as the industry survey (See TDD Section 3) remains the best available source of information for characterizing operations across the industry.
While almost all steam electric power plants generate certain wastewater, like cooling water and boiler blowdown, the presence of other wastestreams depends on the type of fuel burned. Coal- and petroleum coke-fired generating units, and to a lesser degree oil-fired generating units, generate a flue gas stream that contains large quantities of particulate matter, sulfur dioxide, and nitrogen oxides, which would be emitted to the atmosphere if they were not cleaned from the flue gas prior to emission. Therefore, many of these generating units are outfitted with air pollution control systems (
See TDD Sections 4, 6, and 7 for details on these systems, the wastewaters they generate, the number of facilities that operate the systems and generate wastewater, and the control technologies used for wastewater treatment prior to discharge.
FGD systems are used to remove sulfur dioxide from the flue gas so that it is not emitted into the air. Dry FGD systems spray a sorbent slurry into a reactor vessel so that the droplets dry as they contact the hot flue gas. Although dry FGD scrubbers use water in their operation, the water in most systems evaporates and they generally do not discharge wastewater. Wet FGD systems contact the sorbent slurry with flue gas in a reactor vessel producing a wastewater stream.
Treatment technologies for FGD wastewater include chemical precipitation, biological treatment, and evaporation. At some plants, this wastewater is handled in surface impoundments, constructed wetlands, or through practices achieving zero discharge. As described above in Section V.C and TDD section 7, EPA identified other technologies that have been evaluated or are being developed to treat FGD wastewater, including iron cementation, ZVI cementation, reverse osmosis, absorption or adsorption media, ion exchange, and electrocoagulation.
Plants use particulate removal systems to collect fly ash and other particulates from the flue gas in hoppers located underneath the equipment. Of the coal-, petroleum coke-, and oil-fired steam electric power plants that generate fly ash, most of them transport fly ash pneumatically from the hoppers to temporary storage silos, thereby not generating any transport water. Some plants, however, use water to transport (sluice) the fly ash from the hoppers to a surface impoundment. The water used to transport the fly ash to the surface impoundment is usually discharged to surface water as overflow from the impoundment after the fly ash has settled to the bottom.
Bottom ash consists of heavier ash particles that are not entrained in the flue gas and fall to the bottom of the furnace. In most furnaces, the hot bottom ash is quenched in a water-filled hopper. For purposes of this rule, boiler slag is considered bottom ash. Boiler slag is the molten bottom ash collected at the base of the furnace that is quenched with water. Most plants use water to transport (sluice) the bottom ash from the hopper to an impoundment or dewatering bins. The ash sent to a dewatering bin is separated from the transport water and then disposed. For both of these systems, the water used to transport the bottom ash to the impoundment or dewatering bins is usually discharged to surface water as overflow from the systems, after the bottom ash has settled to the bottom.
Of the coal-, petroleum coke-, and oil-fired steam electric power plants that generate bottom ash, most operate wet sluicing handling systems. There are two types of bottom ash handling technologies that can meet zero discharge requirements: (1) Dry handling technologies that do not use any water, including systems such as dry vacuum or pressure systems, dry mechanical conveyor systems, and vibratory belt systems; and (2) wet systems that do not generate or discharge ash transport water, including mechanical drag systems (MDS), remote MDS, and complete-recycle systems.
FGMC systems remove mercury from the flue gas, so that it is not emitted into
Of the current or planned activated carbon injection systems, most operate upstream injection. However, plants that wish to market their fly ash will typically inject the activated carbon downstream of the primary particulate removal system to prevent contaminating the fly ash with carbon. For plants operating downstream injection, the FGMC wastes, which would be collected with some carry-over fly ash, could be handled separately from fly ash in either a wet or dry handling system.
Combustion residuals comprise a variety of wastes from the combustion process, which are generally collected by or generated from air pollution control technologies. These combustion residuals can be stored at the plant in on-site landfills or surface impoundments. Leachate includes liquid, including any suspended or dissolved constituents in the liquid, that has percolated through or drained from waste or other materials placed in a landfill, or that passes through the containment structure (
In a lined landfill or impoundment, the combustion residual leachate collected in the liner is typically transported to an impoundment (
Using data from the industry survey and site visits, surface impoundments are the most widely used systems to treat combustion residual leachate. EPA also identified different management practices, with approximately one-third of plants collecting the combustion residual leachate from impoundments and recycling it back to the impoundment from which it was collected. Some plants use their collected leachate as water for moisture conditioning of dry fly ash prior to disposal or for dust control around dry unloading areas and landfills.
Integrated Gasification Combined Cycle (IGCC) plants use a carbon-based feedstock (
EPA is aware of three plants that operate IGCC units in the U.S. All three plants currently treat their gasification wastewater with vapor-compression evaporation systems. One of these plants also includes a cyanide destruction stage as part of the treatment system.
In determining which pollutants warrant regulation in this rule, EPA first evaluated the wastewater characteristics to identify pollutants of concern (POCs). Constituents present in steam electric power plant wastewater are primarily derived from the parent carbon feedstock (
For wastestreams where the final rule establishes numeric effluent limitations or standards, effluent limitations or standards for all POCs are not necessary to ensure that the pollutants are adequately controlled because many of the pollutants originate from similar sources, have similar treatability, and are removed by similar mechanisms. Because of this, it is sufficient to establish effluent limitations or standards for one or more indicator pollutants, which will ensure the removal of other POCs. For wastestreams where the final rule establishes zero discharge limitations or standards, all POCs are directly regulated.
For wastestreams where the final rule establishes numeric effluent limitations or standards, EPA selected a subset of pollutants as indicators for all regulated pollutants upon consideration of the following factors:
• EPA did not set limitations or standards for pollutants associated with treatment system additives because regulating these pollutants could interfere with efforts to optimize treatment system operation.
• EPA did not set limitations or standards for pollutants for which the treatment technology was ineffective
• EPA did not set limitations or standards for pollutants that are adequately controlled through the regulation of another indicator pollutant because they have similar properties and are treated by similar mechanisms as a regulated pollutant.
See TDD Section 11 for additional detail on EPA's analysis and rationale for selecting the regulated pollutants.
Before establishing PSES/PSNS for a pollutant, EPA examines whether the pollutant “passes through” a POTW to waters of the U.S. or interferes with the POTW operation or sludge disposal practices. In determining whether a pollutant passes through POTWs for these purposes, EPA generally compares the percentage of a pollutant removed by well-operated POTWs performing secondary treatment to the percentage removed by the BAT/NSPS technology basis. A pollutant is determined to pass through POTWs when the median percentage removed nationwide by well-operated POTWs is less than the median percentage removed by the BAT/NSPS technology basis. Pretreatment standards are established for those pollutants regulated under BAT/NSPS that pass through POTWs.
Under this rule, for those wastestreams regulated with a zero discharge limitation or standard, EPA set the percentage removed by the technology basis at 100 percent. Because a POTW would not be able to achieve 100 percent removal of wastewater pollutants, it is appropriate to set PSES at zero discharge, otherwise pollutants would pass through the POTW.
For wastestreams for which the final rule establishes numeric limitations and standards, EPA determined the pollutant percentage removed by the rule's technology basis using the same data sources used to determine the long-term averages for each set of limitations and standards (see TDD Section 13). As it has done for other rulemakings, EPA determined the nationwide percentage removed by well-operated POTWs performing secondary treatment using one of two data sources:
• Fate of Priority Pollutants in Publicly Owned Treatment Works, September 1982, EPA 440/1-82/303 (50 POTW Study); or
• National Risk Management Research Laboratory Treatability Database, Version 5.0, February 2004 (formerly called the Risk Reduction Engineering Laboratory database).
With a few exceptions, EPA performs a POTW pass-through analysis for pollutants selected for regulation for BAT/NSPS for each wastestream of concern. The exception is for conventional pollutants such as BOD
Section VIII, below, summarizes the results of the pass-through analysis. EPA found that all of the pollutants considered for regulation under BAT/NSPS pass through and, therefore, also selected them for regulation under PSES/PSNS. For a more detailed discussion of how EPA performed its pass-through analysis, see TDD Section 11.
The final rule does not revise the previously established BPT effluent limitations because the rule regulates the same wastestreams at the more stringent BAT/NSPS level of control. The rule does, however, make certain structural modifications to the BPT regulations in light of new and revised definitions. In particular, the final rule establishes separate definitions for FGD wastewater, FGMC wastewater, gasification wastewater, and combustion residual leachate, making clear that these four wastestreams are no longer considered low volume waste sources. Given these new and revised definitions, the final rule modifies the structure of the previously established BPT regulations so that they specifically identify these four wastestreams, but without changing their applicable BPT limitations, which are equal to those for low volume waste sources.
EPA analyzed many regulatory options at proposal, the details of which were discussed fully in the document published on June 7, 2013 (78 FR 34432). EPA proposed to regulate pollutants found in seven wastestreams found at steam electric power plants, each based on particular control technologies. Depending on the interests represented, public commenters supported virtually all of the regulatory options that EPA proposed—from the least stringent to the most stringent, and many options in between. For this final rule, based on public comments, EPA also considered a few additional regulatory options. None of these additional regulatory options involve regulation of different pollutants or wastestreams, or the application of different control technologies, than those explicitly considered and presented at proposal. Rather, they involve slight variations on the overall packaging of the key options presented at proposal. Thus, in developing this final rule, EPA named six main regulatory options, Options A, B, C, D, E, and F.
The following paragraphs describe the six options (Options A through F), by wastestream, including the technology bases for the requirements associated with each.
Consistent with the proposal, under all Options A through F, for oil-fired generating units and small generating units (50 MW or smaller) that are existing sources, the rule would establish BAT/PSES effluent limitations and standards on TSS in fly ash transport water, bottom ash transport water, FGD wastewater, FGMC wastewater, combustion residual leachate, and gasification wastewater equal to the previously promulgated BPT effluent limitations on TSS
Under Option A, EPA would establish effluent limitations and standards for mercury and arsenic in FGD wastewater based on treatment using chemical precipitation. Under Options B through E, EPA would establish effluent limitations and standards for mercury, arsenic, selenium, and nitrate/nitrite as N in FGD wastewater based on treatment using chemical precipitation (as under Option A) followed by biological treatment. Under Option F, EPA would establish effluent limitations and standards for mercury, arsenic, selenium, and TDS in FGD wastewater based on treatment using an evaporation system. Under all options, to facilitate implementation of the new BAT/NSPS/PSES/PSNS requirements, EPA would also promulgate a definition for FGD wastewater, making clear it would no longer be considered a low volume waste source.
Under all Options A through F, EPA would establish (or in the case of NSPS/PSNS, maintain) zero discharge effluent limitations and standards for pollutants in fly ash transport water based on use of a dry handling system.
Under Options A and B, EPA would establish effluent limitations and standards for bottom ash transport water equal to the previously promulgated BPT limitation on TSS, which is based on the use of a surface impoundment. Under Options D, E, and F, EPA would establish zero discharge effluent limitations and standards for pollutants in bottom ash transport water based on one of two technologies: A dry handling system or a closed-loop system. Under Option C, EPA would establish, for bottom ash transport water, zero discharge limitations and standards based on dry handling or closed-loop systems only for generating units with a nameplate capacity of more than 400 MW. Units with a nameplate capacity equal to or less than 400 MW would have to meet new effluent limitations and standards equal to the previously established BPT limitation on TSS, based on surface impoundments.
Under all Options A through F, EPA would establish zero discharge effluent limitations and standards for FGMC wastewater based on use of a dry handling system. Under all Options A through F, EPA would establish a separate definition for FGMC wastewater, making clear it would no longer be considered a low volume waste source.
The technology basis for control of gasification wastewater under all Options A through F is an evaporation system. Under these options, EPA would establish limitations and standards on arsenic, mercury, selenium, and TDS in gasification wastewater. Under all Options A through F, EPA would establish a separate definition for gasification wastewater, making clear it would no longer be considered a low volume waste source.
Under Options A through D, EPA would establish effluent limitations and standards for combustion residual leachate equal to the previously promulgated BPT limitation on TSS for low volume waste sources. Under Options E and F, EPA would establish additional limitations and standards for arsenic and mercury in combustion residual leachate based on treatment using a chemical precipitation system (the same technology basis for control of FGD wastewater under Option A). Under all Options A through F, EPA would establish a separate definition for combustion residual leachate, making
Under all Options A through F, EPA would continue to reserve BAT/NSPS/PSES/PSNS for non-chemical metal cleaning wastes, as the previously established regulations do.
After considering the technologies described in this preamble and Section 7 of the TDD, as well as public comments, and in light of the factors specified in CWA sections 304(b)(2)(B) and 301(b)(2)(A) (see Section IV.B.3), EPA decided to establish BAT effluent limitations based on the technologies described in Option D. Thus, for BAT, the final rule establishes: (1) Limitations on arsenic, mercury, selenium, and nitrate/nitrite as N in FGD wastewater, based on chemical precipitation plus biological treatment;
This rule identifies treatment using chemical precipitation followed by biological treatment as the BAT technology basis for control of pollutants discharged in FGD wastewater. More specifically, the technology basis for BAT is a chemical precipitation system that employs hydroxide precipitation, sulfide precipitation (organosulfide), and iron coprecipitation, followed by an anoxic/anaerobic fixed-film biological treatment system designed to remove heavy metals, selenium, and nitrates.
Biological treatment has been tested at power plants for more than ten years and full-scale systems have been operating at a subset of plants for seven years. It has been widely used in many industrial applications for decades, in both the U.S. and abroad, and it has been employed at coal mines. Currently, six U.S. steam electric power plants (approximately ten percent of those discharging FGD wastewater) use biological treatment designed to substantially reduce nitrogen compounds and selenium in their FGD wastewater. Other power plants are considering installing biological treatment to remove selenium, and at least one plant is scheduled to begin operating a biological treatment system for selenium removal soon. Four of the six plants using biological systems to treat their FGD wastewater precede the biological treatment stage with chemical precipitation; thus, the entire system is designed to remove suspended solids, particulate and dissolved metals (such as mercury and arsenic), soluble and insoluble forms of selenium, and nitrate and nitrite forms of nitrogen. These plants show that chemical precipitation followed by biological treatment is technologically available and demonstrated. The other two plants operating anoxic/anaerobic bioreactors to remove selenium precede the biological treatment stage with surface impoundments instead of chemical precipitation. The treatment systems at these two plants are likely to be less effective at removing metals (including many dissolved metals) and would likely face more operational problems than the plants employing chemical pretreatment, but they nevertheless show the efficacy and availability of biological treatment for removing selenium and nitrate/nitrite in FGD wastewater.
A few commenters questioned the feasibility of biological treatment at some power plants. Specifically, they claimed, in part, that the efficacy of biological systems is unpredictable and is subject to temperature changes, high chloride concentrations, scaling, and high oxidation-reduction potential (ORP) in the absorber, which could kill the microorganisms in the bioreactor. EPA's record does not support these assertions for a well-designed and well-operated chemical precipitation and biological treatment system.
EPA's record demonstrates that proper pretreatment prior to biological treatment and proper monitoring with adjustments to the treatment system as necessary are key to reducing operational concerns raised by commenters. Proper pretreatment includes chemical precipitation, which can address wastewater containing high oxidant loads through addition of a reducing agent in one of the treatment
Some commenters also claimed that the efficacy of biological systems in removing selenium is subject to changes in switching from one coal type to another (also referred to as fuel flexing). Where EPA had biological treatment performance data paired with fuel type, EPA reviewed it and found that existing biological treatment systems continue to perform well during periods of fuel switching. See DCN SE05846. The data show that, in all cases except one, the plants met the selenium limitations following fuel switches. In one instance when a plant switched to a certain coal type, the plant exceeded the final daily maximum selenium limitation for one out of thirteen observations for the month while the average of all values for that month were below the final monthly selenium limitation. This plant was not subject to a selenium limit at the time data was collected. Moreover, EPA's record demonstrates that effective communication between the operator(s) of the generating unit and the boiler, as well as bench testing and monitoring the ORP, and making proper adjustments to the operation of the treatment system, would make it possible to prevent potential selenium exceedances at this plant. Data for two other plants operating full-scale biological treatment systems shows that fuel switches should not result in exceeding the effluent limitations. EPA also has data from a pilot project at another plant employing the same type of coal used by the one plant that experienced elevated selenium effluent concentrations following a coal switch. The data for this pilot project demonstrate effective selenium removal by the BAT technology basis, with all effluent values at concentrations below the BAT limitations established in this rule.
EPA also reviewed effluent data in the record for plants operating combined chemical precipitation and biological treatment for FGD wastewater to evaluate how cycling operation (
EPA did not select surface impoundments as the BAT technology basis for FGD wastewater because it would not result in reasonable further progress toward eliminating the discharge of all pollutants, particularly toxic pollutants (see CWA section 301(b)(2)(A)). Surface impoundments, which rely on gravity to remove particulates from wastewater, are the technology basis for the previously promulgated BPT effluent limitations for low volume waste sources. Pollutants that are present mostly in soluble (dissolved) form, such as selenium, boron, and magnesium, are not effectively and reliably removed by gravity in surface impoundments. For metals present in both soluble and particulate forms (such as mercury), gravity settling in surface impoundments does not effectively remove the dissolved fraction. Furthermore, the environment in some surface impoundments can create chemical conditions (
Chemical precipitation and biological treatment are more effective than surface impoundments at removing both soluble and particulate forms of metals, as well as other pollutants such as nitrogen compounds and TDS. Because many of the pollutants of concern in FGD wastewater are present in dissolved form and would not be removed by surface impoundments, and because of the relatively large mass loads of these pollutants (
EPA also rejected identifying chemical precipitation, alone, (Option A) as BAT for FGD wastewater because, while chemical precipitation systems are capable of achieving removals of various metals, the technology is not effective at removing selenium, nitrogen compounds, and certain metals that contribute to high concentrations of TDS in FGD wastewater. These pollutants of concern are discharged by steam electric power plants throughout the nation, causing adverse human health impacts and some of the most egregious environmental impacts (see Section XIII and EA). In light of this, and the fact that economically achievable technologies are available to
EPA also decided not to establish, for all steam electric power plants, BAT limitations for FGD wastewater based on treatment using an evaporation system. In particular, this technology basis would employ a falling-film evaporator (also known as a brine concentrator) to produce a concentrated wastewater stream (brine) and a distillate stream.
Finally, EPA decided not to establish a requirement that would direct permitting authorities to establish limitations for FGD wastewater using site-specific BPJ. Public commenters representing industry, state, and environmental group interests urged EPA not to establish any requirement that would leave BAT effluent limitations for FGD wastewater to be determined on a BPJ basis. Sections 301 and 304 of the CWA require EPA to develop nationally applicable ELGs based on the best available technology economically achievable, taking certain factors into account. EPA decided that it would not be appropriate to leave FGD wastewater requirements in the final rule to be determined on a BPJ basis because there are sufficient data to set uniform, nationally applicable limitations on FGD wastewater at plants across the nation. Given this, BPJ permitting of FGD wastewater would place an unnecessary burden on permitting authorities, including state and local agencies, to conduct a complex technical analysis that they may not have the resources or expertise to complete. BPJ permitting of FGD wastewater would also unnecessarily burden the regulated industry because of associated delays and uncertainty with respect to permits.
This rule identifies dry handling as the BAT technology basis for control of pollutants in fly ash transport water. Specifically, the technology basis for BAT is a dry vacuum system that employs a mechanical exhauster to pneumatically convey the fly ash (via a change in air pressure) from hoppers directly to a silo. Dry handling is clearly available to control the pollutants present in fly ash transport water. Today, the vast majority of steam electric power plants use dry handling techniques to manage fly ash, and by doing so avoid generating fly ash transport water. All new generating units built since the ELGs were last revised in 1982 have been subject to a zero discharge standard for pollutants in fly ash transport water. In addition, many owners and operators with generating units that are not subject to the previously established zero discharge NSPS for fly ash transport water have chosen to retrofit their units with dry fly ash handling technology to meet operational needs or for economic reasons. The trend in the industry is, moreover, toward the conversion and use of dry fly ash handling systems. See TDD Section 4.5. Based on data collected in the industry survey, EPA estimates that approximately 80 percent of coal and petroleum coke-fired generating units operate dry fly ash handling systems. Since the survey, companies have continued to upgrade, or announce plans to upgrade, their ash handling systems at generating units. See TDD Section 4.5.
Dry ash handling does not adversely affect plant operations or reliability, and it promotes the beneficial reuse of coal combustion residuals. In addition, converting to dry fly ash handling eliminates the need to treat fly ash transport water in a surface impoundment, and it reduces the amount of wastes entering surface impoundments and the risk and severity of structural failures and spills.
EPA decided not to finalize a BAT limitation on fly ash transport water equal to the previously promulgated BPT limitation on TSS, based on the technology of surface impoundments, for the same reasons (where applicable) that EPA did not identify surface impoundments as BAT for FGD wastewater (see Section VIII.C.1).
This rule identifies dry handling or closed-loop systems as the BAT technology basis for control of pollutants in bottom ash transport water.
These technologies for control of bottom ash transport water are demonstrably available. Based on survey data, more than 80 percent of coal-fired generating units built in the last 20 years have installed dry bottom ash handling systems. In addition, EPA found that more than half of the entities that would be subject to BAT requirements for bottom ash transport water are already employing zero discharge technologies (dry handling or closed-loop wet ash handling) or planning to do so in the near future.
Dry bottom ash handling does not adversely affect plant operations or reliability, and shifting to dry bottom ash handling offers certain benefits. As was the case for dry fly ash handling, shifting to dry bottom ash handling eliminates the need to send bottom ash transport water to a surface impoundment, and it reduces the
EPA did not identify surface impoundments as BAT for bottom ash transport water for the same reasons (where applicable) that it did not identify surface impoundments as BAT for FGD wastewater (see Section VIII.C.1). Moreover, because the estimated overall cost of the rule has decreased since proposal (see Section IX), EPA also decided that establishing different bottom ash transport water limitations for generating units of and below a certain size (other than 50 MW, as described in Section VIII.C.12), as in Option C, was not warranted.
At proposal and for the final rule, EPA considered an option that would have established differentiated bottom ash transport water requirements for units below 400 MW (Option C). Some public commenters stated that EPA's record does not support differentiated requirements for bottom ash transport water. They stated that BAT should be established at a level at which the costs are affordable to the industry as a whole, and that the cost to a unit in terms of dollars per amount of energy produced (in MW) is not a relevant factor. They cited EPA's record, which demonstrates that units of all sizes have installed dry handling and closed-loop systems, as well as EPA's economic achievability analysis, which does not show that units of 400 MW or less are especially likely to shut down if faced with a zero discharge requirement. Other commenters supported EPA's consideration of the relative magnitude of costs per amount of energy produced for units below or equal to 400 MW, as compared to larger units, as well as differentiated bottom ash transport water requirements for these units.
EPA reviewed its record and re-evaluated whether it would be appropriate to establish differentiated requirements for discharges of bottom ash transport water from existing sources based on unit size, in light of comments and the key changes since proposal discussed in Section V. Annualized cost per amount of energy produced increases along a smooth curve moving from the very largest units to the smallest units. See DCN SE05813. That, however, is expected due to economies of scale. There is no clear breaking point at which to establish a size threshold for purposes of differentiated requirements for bottom ash transport water.
This rule identifies dry handling as the BAT technology basis for the control of pollutants in FGMC wastewater. More specifically, the technology basis for BAT is a dry vacuum system that employs a mechanical exhauster to convey the FGMC waste (via a change in air pressure) from hoppers directly to a silo. Dry handling of FGMC waste is available and well demonstrated in the industry; indeed, nearly all plants with FGMC systems use dry handling systems. Plants using sorbent injection systems (
EPA decided that it would not be appropriate to establish BAT limitations for FGMC wastewater based on surface impoundments for the same reasons (where applicable) that it did not identify surface impoundments as BAT for FGD wastewater (see Section VIII.C.1).
This rule identifies evaporation as the BAT technology basis for the control of pollutants in gasification wastewater. More specifically, the technology basis for BAT is an evaporation system using a falling-film evaporator (or brine concentrator) to produce a concentrated wastewater stream (brine) and a reusable distillate stream. This evaporation technology is available and well demonstrated in the industry for treatment of gasification wastewater. All three IGCC plants now operating in the U.S. (the only existing sources of gasification wastewater) use evaporation technology to treat their gasification wastewater.
EPA did not identify surface impoundments as BAT for gasification wastewater for the same reasons (where applicable) that it did not identify surface impoundments as BAT for FGD wastewater (see Section VIII.C.1). In addition, one existing IGCC plant previously used a surface impoundment to treat its gasification wastewater, and the impoundment effluent repeatedly exceeded its NPDES permit effluent limitations necessary to meet applicable WQS. Because of the demonstrated inability of surface impoundments to remove the pollutants of concern, and given that current industry practice is treatment of gasification wastewater using evaporation, EPA concluded that surface impoundments do not represent BAT for gasification wastewater.
EPA also considered including cyanide treatment as part of the technology basis for BAT (as well as NSPS, PSES, and PSNS) for gasification wastewater. EPA is aware that the Edwardsport IGCC plant, which began commercial operation in June 2013, includes cyanide destruction as one step
EPA received public comments expressing concern that the proposed definition of combustion residual leachate would apply to contaminated stormwater. Although this was not the Agency's intention, for the final rule, EPA revised the definition to make it clear that contaminated stormwater does not fall within the final definition of combustion residual leachate. This rule identifies surface impoundments as the BAT technology basis for control of pollutants in combustion residual leachate. Based on surface impoundments, which relies on gravity to remove particulates, this rule establishes a BAT limitation on TSS in combustion residual leachate equal to the previously promulgated BPT limitation on TSS in low volume waste sources. Few steam electric power plants currently employ technologies other than surface impoundments for treatment of combustion residual leachate. Throughout the development of this rule, EPA considered whether technologies in place for treatment of other wastestreams at steam electric power plants and wastestreams generated by other industries, including chemical precipitation, could be used for combustion residual leachate. At proposal, noting the small amount of pollutants in combustion residual leachate relative to other significant wastestreams at steam electric power plants, and that this was an area ripe for innovation, EPA requested additional information related to cost, pollutant reduction, and effectiveness of chemical precipitation and alternative approaches to treat combustion residual leachate. Commenters did not provide information that EPA could use to establish BAT limitations. Thus, EPA decided not to finalize BAT limitations for combustion residual leachate based on chemical precipitation (Option E). The record demonstrates that the amount of pollutants collectively discharged in combustion residual leachate by steam electric power plants is a very small portion of the pollutants discharged collectively by all steam electric power plants (approximately 3 percent of baseline loadings, on a toxic-weighted basis). Given this, and the fact that this rule regulates the wastestreams representing the three largest sources of pollutants from steam electric power plants (including by setting a zero discharge standard for two out of the three wastestreams), EPA decided that this rule already represents reasonable further progress toward the CWA's goals. The final rule, therefore, establishes BAT limitations for combustion residual leachate equal to the BPT limitation on TSS for low volume waste sources.
As part of the consideration of the technological availability and economic achievability of the BAT limitations in the rule, EPA considered the magnitude and complexity of process changes and new equipment installations that would be required at facilities to meet the rule's requirements. As described in greater detail in Section XVI.A.1, where BAT limitations in this rule are more stringent than previously established BPT limitations, those limitations do not apply until a date determined by the permitting authority that is as soon as possible beginning November 1, 2018 (approximately three years following promulgation of this rule), but that is also no later than December 31, 2023 (approximately eight years following promulgation).
Consistent with the proposal and supported by many commenters, the final rule takes this approach in order to provide the time that many facilities need to raise capital, plan and design systems, procure equipment, and construct and then test systems. It also allows for consideration of plant changes being made in response to other Agency rules affecting the steam electric industry (see Section V.B). Moreover, it enables facilities to take advantage of planned shutdown or maintenance periods to install new pollution control technologies.
For purposes of the BAT limitations in this rule, this preamble uses the term “legacy wastewater” to refer to FGD wastewater, fly ash transport water, bottom ash transport water, FGMC wastewater, or gasification wastewater generated prior to the date determined by the permitting authority that is as soon as possible beginning November 1, 2018, but no later than December 31, 2023 (see Section VIII.C.7). Under this rule, legacy wastewater must comply with specific BAT limitations, which EPA is setting equal to the previously promulgated BPT limitations on TSS in the discharge of fly ash transport water, bottom ash transport water, and low volume waste sources.
EPA did not establish zero discharge BAT limitations for legacy wastewater because technologies that can achieve zero discharge (such as the ones on which the final BAT requirements discussed in Sections VIII.C.2, 3, and 4, above, are based) are not shown to be available for legacy wastewater. Legacy wastewater already exists in wet form, and thus dry handling could not be used eliminate its discharge. Furthermore, EPA lacks data to show that legacy wastewater could be reliably incorporated into a closed-loop process that eliminates discharges, given the variation in operating practices among
EPA also decided not to establish BAT limitations for legacy wastewater based on a technology other than surface impoundments (chemical precipitation, chemical precipitation plus biological treatment, evaporation) because it does not have the data to do so. Data are not available because of the way that legacy wastewater is currently handled at plants.
The vast majority of plants combine some of their legacy wastewater with each other and with other wastestreams, including cooling water, coal pile runoff, metal cleaning wastes, and low volume waste sources in surface impoundments.
Finally, while there are a few plants that discharge from an impoundment containing only legacy FGD wastewater,
EPA's analysis for the final BAT limitations demonstrates that they are economically achievable for the steam electric industry as a whole, as required by CWA section 301(b)(2)(A). EPA performed cost and economic impact assessments using the Integrated Planning Model (IPM) using a baseline that reflects impacts from other relevant environmental regulations (see RIA).
The final BAT effluent limitations have acceptable non-water quality
EPA also evaluated the effect of the BAT effluent limitations on air emissions generated by all electric power plants (NO
EPA examined the effects of the final rule on consumers as an additional factor that might be appropriate when considering what level of control represents BAT. If all annualized compliance costs were passed on to residential consumers of electricity, instead of being borne by the operators and owners of power plants (a very conservative assumption), the average monthly increase in electricity bill for a typical household would be no more than $0.12 under the final rule.
EPA also considered the effect of the rule on minority and low-income populations. As explained in Section XVII.J, using demographic data regarding who resides closest to steam electric power plant discharges and who consumes the most fish from waters receiving power plant discharges, EPA concluded that low-income and minority populations benefit to an even greater degree than the general population from the reductions in discharges associated with the final rule.
EPA considered whether subcategorization of the ELGs was warranted based on the factors specified in CWA section 304(b)(2)(B) (see Section IV.B.3 and TDD Section 5). Ultimately, EPA concluded that it would be appropriate to set different limitations for existing small generating units (50 MW or less) and existing oil-fired generating units. No other, different requirements were warranted for this rule under the factors considered.
EPA decided to finalize these limitations for oil-fired generating units because EPA's record demonstrates that, in comparison to coal- and petroleum coke-fired units, oil-fired units generate substantially fewer pollutants, are generally older and operate less frequently, and in many cases are more susceptible to early retirement when faced with compliance costs attributable to the final rule.
The amount of ash generated by oil-fired units is a small fraction of the amount produced by coal-fired units. Coal-fired units generate hundreds to thousands of tons of ash each day, with some plants generating more than 2,000 tons per day of ash. In contrast, oil-fired units generate less than ten tons of ash per day. This disparity is also apparent when comparing the ash tonnage to the amount of power generated, with coal-fired units producing nearly 1,800 times more ash than oil-fired units (0.6 tons per MW-hour on average for coal units; 0.000319 tons per MW-hour on average for oil units). The amount of pollutants discharged to surface waters is roughly correlated to the amount of ash wastewater discharged; thus, oil-fired generating units discharge substantially fewer pollutants to surface waters than coal-fired units, even when generating the same amount of electricity. EPA estimates that the amount of pollutants discharged collectively by all oil-fired generating units is a very small portion of the pollutants discharged collectively by all steam electric power plants (less than one percent, on a toxic-weighted basis).
Oil-fired generating units are generally among the oldest steam electric units in the industry. Eighty-seven percent of the units are more than 25 years old. In fact, more than a quarter of the units began operation more than 50 years ago. Based on responses to the industry survey, fewer than 20 oil-fired generating units discharged fly ash or bottom ash transport water in 2009. This is likely because only about 20 percent of oil-fired generating units operate as baseload units; the rest are either cycling/intermediate units (about 45 percent) or peaking units (about 35 percent). These units also have notably low capacity utilization. While about 30 percent of the baseload units report capacity utilization greater than 75 percent, almost half report a capacity utilization of less than 25 percent. Eighty percent of the cycling/intermediate units and all peaking units also report capacity utilization less than 25 percent. Thirty-five percent of oil-fired generating units operated for more than six months in 2009; nearly half of the units operated for fewer than 30 days.
While these older and generally intermittently operated oil-fired generating units are capable of installing and operating the treatment technologies that form the bases for this rule, and the costs would be affordable for most plants, EPA concludes that, due to the factors described here, companies may choose to shut down these oil-fired units instead of making new investments to comply with the rule. If these units shut down, EPA is concerned about resulting reductions in the flexibility that grid operators have during peak demand due to less reserve generating capacity to draw upon. But, more importantly, maintaining a diverse fleet of generating units that includes a variety of fuel sources is important to the nation's energy security. Because the supply/delivery network for oil is different from other fuel sources, maintaining the existence of oil-fired generating units helps ensure reliable electric power generation, as commenters confirmed. EPA considered these potential impacts on electric grid reliability and the nation's energy security, under CWA section 304(b)(2)(B), in its decision to establish
Some commenters stated that the cost to a unit in terms of dollars per MW is not relevant because BAT should be established at a level at which the costs are affordable to the industry as a whole. They noted that EPA's IPM analysis demonstrates that the most stringent proposed regulatory option is economically achievable for all units above 50 MW. Other commenters supported EPA's consideration of the relative magnitude of costs for smaller units compared to larger units, and some suggested EPA should increase the size threshold to 100 MW because those units also have disproportionate costs per amount of energy produced, and they collectively discharge a small fraction of the total pollutants discharged by all steam electric power plants.
EPA reviewed the record and re-evaluated the threshold for small units in light of comments and the key changes since proposal discussed in Section V. EPA considered establishing no threshold, as well as several different size thresholds, for small units. The Agency looked closely at establishing a threshold at 50 MW or 100 MW. While the total amount of pollutants discharged by units at these thresholds is relatively small in comparison to those discharged by all steam electric power plants, the amount of pollutants discharged by units smaller than or equal to 100 MW is almost double the amount of pollutants discharged by units smaller than or equal to 50 MW. See DCN SE05813 for specific information on these pollutant discharges. The record indicates that the cost per unit of energy produced increases as the size of the generating unit decreases, and while there is no clear “knee of the curve” at which to establish a size threshold, there is a difference between units at 50 MW and below compared to those above 50 MW. Figure VIII-1, below, shows the annualized cost per amount of energy produced for existing units under Regulatory Option D. Figure VIII-1 shows that the cost per amount of energy produced increases as the size of the generating unit decreases. Annualized cost per amount of energy produced increases gradually as one moves from the very largest units down to 100 MW, and then the cost per amount of energy produced begins to increase more rapidly as one moves from 100 MW down to 50 MW, until it increases very rapidly for units at 50MW and below. Additionally, Figure VIII-1 shows that nearly all of the ratios of cost to amount of energy produced for units smaller than or equal to 50 MW are above those for the entire population of remaining units. The same cannot be said of the ratio for units smaller than or equal to 100 MW.
In light of the fact that the costs per amount of energy produced are significantly and disproportionately higher for units smaller than or equal to 50 MW compared to larger units, and in light of the very small fraction of pollutants discharged by units smaller than or equal to 50 MW, EPA ultimately decided to establish different requirements for units at this threshold. Keeping in mind the statutory directive to set effluent limitations that result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants (CWA section 301(b)(2)(A)), EPA used its best judgment to balance the competing interests. EPA recognizes that any attempt to establish a size threshold for generating units will be imperfect due to individual differences across units and firms. EPA concludes, however, that a threshold of 50 MW or less reasonably and effectively targets those generating units that should receive different treatment based on the considerations described above, while advancing the CWA's goals. Furthermore, as shown in Section IX.C, EPA's analysis demonstrates that the final rule, with a threshold established at 50 MW, is economically achievable.
As part of the BAT for existing sources, the final rule establishes a voluntary incentives program that provides the certainty of more time (until December 31, 2023) for plants to implement new BAT requirements, if they adopt additional process changes and controls that achieve limitations on mercury, arsenic, selenium, and TDS in FGD wastewater, based on evaporation technology (see Section VIII.C.1 for a more complete description of the evaporation technology basis). This optional program offers significant environmental protections beyond those achieved by the final BAT limitations for FGD wastewater based on chemical precipitation plus biological treatment because evaporation technology is capable of achieving significant removals of toxic metals, as well as TDS.
EPA's proposal included a voluntary incentives program that contained, as one element, incentives in the form of additional implementation time for plants that eliminate the discharge of all process wastewater (except cooling water). Public commenters urged EPA to consider establishing, instead, a program that provided incentives for plants that go further than the rule's requirements to reduce discharges from individual wastestreams. Because the final rule already contains zero discharge limitations for several key wastestreams, EPA decided that the voluntary incentives program should focus on FGD wastewater.
EPA concluded that additional pollutant reductions could be achieved under a voluntary incentives program because there are certain reasons a plant might opt to treat its FGD wastewater using evaporation rather than chemical precipitation plus biological treatment. One such reason is the possibility that a plant's NPDES permit may need more stringent limitations necessary to meet applicable WQS. For example, some power plant discharges containing TDS (including bromide) that occur upstream of drinking water treatment plants can negatively impact treatment of source waters at the drinking water treatment plants. A recent study identified four drinking water treatment plants that experienced increased levels of bromide in their source water, and corresponding increases in the formation of carcinogenic disinfection by-products (brominated DPBs) in the finished drinking water, after the installation of wet FGD scrubbers at upstream steam electric power plants (DCN SE04503).
Furthermore, based on trends in the industry and experience with this and other industries, EPA expects that, over time, the costs of evaporation (and other technologies that could achieve the limitations in the voluntary incentives program, including zero discharge practices) will decrease so as to make it an even more attractive option for plants. EPA understands that vendors are already working on changes to this technology to reduce the costs, reduce the amount of solids generated, and improve the solids handling. See TDD Section 7.1.4.
The technology on which the BAT limitations in the voluntary incentives program are based, evaporation, is available to steam electric power plants. EPA identified three plants in the U.S. that have installed, and one plant that is in the process of installing, evaporation systems to treat their FGD wastewater. Four coal-fired power plants in Italy treat FGD wastewater using evaporation. See TDD Section 7. Furthermore, the voluntary program is economically achievable because only those plants that opt to be subject to the BAT limitations based on evaporation, rather than the BAT limitations based on chemical precipitation plus biological treatment, must achieve them. Therefore, any plant that chooses to be subject to the more stringent limitations has determined for itself, in light of its own financial information and economic outlook, that such limitations are economically achievable. Finally, EPA analyzed the non-water quality environmental impacts and energy requirements associated with the voluntary incentives program, and it found them acceptable. See DCN SE05574.
The development of this voluntary incentives program furthers the CWA's ultimate goal of eliminating the discharge of pollutants into the Nation's waters. See CWA section 101(a)(1) and section 301(b)(2)(A) (specifying that BAT will result in “reasonable further progress toward the national goal of eliminating the discharge of pollutants”). While the final rule's BAT limitations based on chemical precipitation plus biological treatment represent “reasonable further progress,” the voluntary incentives program is designed to press further toward achieving the national goal of the Act, as wastewater that has been treated properly using evaporation has very low pollutant concentrations (also making it possible to reuse the wastewater and completely eliminate the discharge of any pollutants). In addition, CWA section 104(a)(1) gives the Administrator authority to establish national programs for the prevention, reduction, and elimination of pollution, and it provides that such programs shall promote the acceleration of research, experiments, and demonstrations relating to the prevention, reduction, and elimination of pollution. EPA anticipates that the voluntary incentives program will effectively accelerate the research into and demonstration of controls and processes intended to prevent, reduce, and eliminate pollution because, under it, plants will opt to employ control and treatment strategies to significantly reduce discharges of pollutants found in FGD wastewater.
Steam electric power plants agreeing to meet BAT limitations for FGD wastewater based on evaporation must comply with those limitations on arsenic, mercury, selenium, and TDS in FGD wastewater.
For purposes of the voluntary incentives program BAT limitations, legacy FGD wastewater is FGD wastewater generated prior to December 31, 2023. For such legacy FGD wastewater, the final rule establishes BAT limitations on TSS in discharges of FGD wastewater that are equal to BPT limitations for low volume waste sources.
EPA decided not to make the voluntary incentives program available to plants that send their FGD wastewater to POTWs. Under CWA section 307(b)(1), PSES must specify a time for compliance that does not exceed three years from the date of promulgation, and thus the additional time of up to 2023 cannot be given to indirect dischargers. Of course, nothing prohibits an indirect discharger from using any technology, including evaporation, to comply with the final PSES and PSNS.
EPA expects that any plant interested in the voluntary incentives program would indicate their intent to opt into the program prior to issuance of its next NPDES permit, following the effective date of this rule. A plant can indicate its intent to opt into the voluntary program on its permit application or through separate correspondence to the NPDES Director, as long as the signatory requirements of 40 CFR 122.22 are met.
After considering all of the technologies described in this preamble and TDD Section 7, as well as public comments, and in light of the factors specified in CWA section 306 (see Section IV.B.4), EPA concluded that the technologies described in Option F represent BADCT for steam electric power plants, and the final rule promulgates NSPS based on that option. Thus, the final NSPS establish: (1) Standards on arsenic, mercury, selenium, and TDS in FGD wastewater, based on evaporation (same basis as for BAT limitations in voluntary incentives program); (2) a zero discharge standard on all pollutants in bottom ash transport water, based on dry handling or closed-loop systems (same bases as for BAT limitations); (3) a zero discharge standard on all pollutants in FGMC wastewater, based on dry handling (same basis as for BAT limitations); (4) standards on mercury, arsenic, selenium, and TDS in gasification wastewater, based on evaporation technology (same basis as for BAT limitations); and (5) standards on mercury and arsenic in discharges of combustion residual leachate, based on chemical precipitation (more specifically, the technology basis is a chemical precipitation system that employs hydroxide precipitation, sulfide precipitation, and iron coprecipitation to remove heavy metals). The final rule also maintains the previously established zero discharge NSPS on discharges of fly ash transport water, based on dry handling.
The record indicates that the technologies that serve as the bases for the final NSPS are well demonstrated based on the performance of plants using the technologies. For example, new steam electric power generating sources have been meeting the previously established zero discharge standard for fly ash transport water since 1982, predominantly through the use of dry handling technologies. Moreover, as described in Section VIII.C.13, three plants in the U.S. and four plants in Italy use evaporation technology to treat their FGD wastewater, and another U.S. plant is in the process of installing such technology for that purpose. Of the approximately 50 coal-fired generating units that were built within the last 20 years, most (83 percent) manage their bottom ash without using water to transport the ash and, as a result, do not discharge bottom ash transport water. The technology basis identified as BAT technology for gasification wastewater represents current industry practice. Every IGCC power plant currently in operation uses evaporation to treat their gasification wastewater, even when the wastewater is not discharged and is instead reused at the plant. In the case of FGMC wastewater, every plant currently using post-combustion sorbent injection (
The NSPS in the final rule pose no barrier to entry. The cost to install technologies at new units is typically less than the cost to retrofit existing units. For example, the cost differential between Options B, C, and D for existing sources is mostly associated with retrofitting controls for bottom ash handling systems. For new sources, however, NSPS based on Option F do not present plants with the same choice of retrofit versus modification of existing processes. This is because every new generating unit must install some type of bottom ash handling system as the unit is constructed. Establishing a zero discharge standard for all pollutants in bottom ash transport water as part of the NSPS means that power plants will install a dry bottom ash handling system during construction instead of installing a wet-sluicing system.
Moreover, EPA assessed the possible impacts of the final NSPS on new sources by comparing the incremental costs of the Option F technologies to the costs of hypothetical new generating units. EPA is not able to predict which plants might construct new units or the exact characteristics of such units. Instead, EPA calculated and analyzed compliance costs for a variety of plant and unit configurations. EPA developed NSPS compliance costs for new sources using a methodology similar to the one used to develop compliance costs for existing sources. EPA's estimates for compliance costs for new sources are based on the net difference in costs between wastewater treatment system technologies that would likely have been implemented at new sources under the previously established regulatory requirements, and those that would likely be implemented under the final rule. EPA estimated that the incremental compliance costs for a new generating unit (capital and O&M) represent approximately 3.3 percent of the annualized cost of building and operating a new 1,300 MW coal-fired plant, with capital costs representing 0.3 to 2.8 percent of the overnight construction costs, and annual O&M costs representing 0.3 to 3.9 percent of the fuel and other O&M cost of operating a new plant.
Finally, EPA analyzed the non-water quality environmental impacts and energy requirements associated with Option F for both existing and new sources. See DCN SE05952 and DCN SE05951. Since there is nothing inherently different between an existing and new source, EPA's analysis with respect to existing sources is instructive. Using both of these analyses, EPA determined that NSPS based on the Option F technologies have acceptable non-water quality environmental impacts and energy requirements.
In contrast to the BAT effluent limitations, this rule establishes the same NSPS for oil-fired generating units and small generating units as for all
For each of the wastestreams except combustion residual leachate, EPA rejected establishing NSPS based on surface impoundments for the same reasons it rejected establishing BAT based on surface impoundments. For FGD wastewater, EPA also did not establish NSPS based on chemical precipitation for the same reasons it rejected establishing BAT based on that technology. In particular, these other technologies would not achieve as much pollutant reduction as the technology bases in Option F—which is technologically available and economically achievable with acceptable non-water quality environmental impacts and energy requirements—and thus do not represent best available demonstrated control technology.
EPA did not select surface impoundments as the basis for NSPS for combustion residual leachate because, unlike BAT, NSPS represent the “greatest degree of effluent reduction . . . achievable” (CWA section 306), and (besides “cost” and “any non-water quality environmental impact and energy requirements,” discussed above) EPA does not consider “other factors” in establishing NSPS. When used to treat combustion residual leachate, chemical precipitation can achieve substantial pollutant reductions as compared to surface impoundments. Thus, EPA has determined that NSPS for leachate based on chemical precipitation achieve the “greatest degree of effluent reduction” as that term is used in CWA section 306.
Similarly, EPA did not select chemical precipitation plus biological treatment as the basis for NSPS for FGD wastewater because, under CWA section 306, NSPS reflect “the greatest degree of effluent reduction . . . achievable.” Evaporation systems are capable of achieving extremely low pollutant discharge levels, and in fact can be the basis for a plant completely eliminating all discharges associated with FGD wastewater. Moreover, unlike EPA's decision not to identify evaporation as the technology basis for FGD wastewater discharges from all existing sources due to the large associated cost, establishing NSPS for FGD wastewater based on evaporation does not add to the overall estimated cost of the rule because EPA does not predict any new coal-fired generating units will be installed in the foreseeable future. As explained above, however, in the event that a new unit is installed, EPA determined that the NSPS compliance costs would not present a barrier to entry.
Table VIII-2 summarizes the results of EPA's pass-through analysis for the regulated pollutants (with numeric limitations) in each wastestream, as controlled by the relevant BAT and NSPS technology bases.
After considering all of the relevant factors and technology options in this preamble and in the TDD, as well as public comments, as is the case with BAT, EPA decided to establish PSES based on the technologies described in Option D. For PSES, the final rule establishes: (1) Standards on arsenic, mercury, selenium and nitrate/nitrite as N in FGD wastewater; (2) a zero discharge standard on all pollutants in fly ash transport water; (3) a zero discharge standard on all pollutants in bottom ash transport water; (4) a zero discharge standard on all pollutants in FGMC wastewater; (5) standards on mercury, arsenic, selenium, and TDS in gasification wastewater. All of the technology bases for the final PSES are the same as those described for the final BAT limitations. The final rule does not establish PSES for combustion residual leachate because TSS does not pass through POTWs.
EPA selected the Option D technologies as the bases for PSES for the same reasons that EPA selected the Option D technologies as the bases for BAT. EPA's analysis shows that, for both direct and indirect dischargers, the Option D technologies are available and economically achievable, and Option D has acceptable non-water quality environmental impacts, including energy requirements (see Sections IX and XII). EPA rejected other options for
As with the final BAT effluent limitations, in considering the availability and achievability of the final PSES, EPA concluded that existing indirect dischargers need some time to achieve the final standards, in part to avoid forced outages (see Section VIII.C.7). However, in contrast to the BAT limitations (which apply on a date determined by the permitting authority that is as soon as possible beginning November 1, 2018, but no later than December 31, 2023), the new PSES apply as of November 1, 2018. Under CWA section 307(b)(1), pretreatment standards shall specify a time for compliance not to exceed three years from the date of promulgation, so EPA cannot establish a longer implementation period. Moreover, unlike requirements on direct discharges, requirements on indirect discharges are not implemented through an NPDES permit and thus are not subject to awaiting the next permit issuance before the limitations are specified clearly for the discharger. EPA has determined that all of the existing indirect dischargers can meet the standards by November 1, 2018, and because there are a handful of indirect dischargers (who would have approximately three years from the date of promulgation to achieve the standards), implementation of the standards by that date would not lead to electricity availability concerns. See RIA.
For purposes of the PSES in this rule, this preamble uses the term “legacy wastewater” to refer to FGD wastewater, fly ash transport water, bottom ash transport water, FGMC wastewater, or gasification wastewater generated prior to November 1, 2018. For the same reasons that EPA decided to establish BAT limitations on TSS in discharges of legacy wastewater equal to BPT limitations for fly ash transport water, bottom ash transport water, and low volume waste sources, the final rule does not establish PSES for legacy wastewater (see Section VIII.C.8). TSS and the pollutants it represents are effectively treated by, and thus do not pass through, POTWs.
After considering all of the relevant factors and technology options described in this preamble and TDD Section 7, as well as public comments, as was the case for NSPS, EPA selected the Option F technologies as the bases for PSNS in this rule. As a result, the final PSNS establish: (1) Standards on arsenic, mercury, selenium, and TDS in FGD wastewater; (2) a zero discharge standard on all pollutants in bottom ash transport water; (3) a zero discharge standard on all pollutants in FGMC wastewater; (4) standards on mercury, arsenic, selenium, and TDS in gasification wastewater; and (5) standards on mercury and arsenic in combustion residual leachate. All the technology bases for the final PSNS are the same as those described for the final NSPS. The final rule also maintains the previously established zero discharge PSNS on discharges of fly ash transport water. As with the final NSPS, this rule establishes the same PSNS for oil-fired generating units and small generating units as for all other new sources.
EPA selected the Option F technologies as the bases for PSNS for the same reasons that EPA selected the Option F technologies as the bases for NSPS (see Section VIII.D). EPA's record demonstrates that the technologies described in Option F are available and demonstrated, and Option F does not pose a barrier to entry and has acceptable non-water quality environmental impacts, including energy requirements (see Sections IX and XII). EPA rejected other options for PSNS for the same reasons that the Agency rejected other options for NSPS. And, as with the final PSES, EPA determined that the final PSNS prevent pass through of pollutants from POTWs into receiving streams and also help control contamination of POTW sludge.
The final rule establishes one of the three anti-circumvention provisions that EPA proposed. The one anti-circumvention provision that EPA decided to establish applies only for existing sources to those wastestreams for which this rule established zero discharge limitations or standards. In general, this provision prevents steam electric power plants from circumventing the final rule by moving effluent produced by a process operation for which there is an applicable zero discharge effluent limitation or standard to another plant process operation for discharge.
Some public commenters stated that zero discharge effluent limitations and standards for fly ash and bottom ash transport water, together with this anti-circumvention provision, would prohibit water reuse and prevent water withdrawal reduction at steam electric power plants. In general, EPA disagrees with these commenters. Most plants will choose to comply with the requirements for ash transport water by operating either a dry or closed-loop wet-sluicing system to handle their fly and bottom ash, which will eliminate or substantially reduce the amount of water they currently use in the traditional wet-sluicing system. To the extent that a plant currently uses (or was considering using) ash transport water, such as the effluent from an impoundment, as makeup water for processes such as make-up cooling water and would be precluded from doing so because of the anti-circumvention provision in this rule, the plant could merely switch to an alternate source for the makeup water, such as the water that was (prior to implementing the zero discharge requirement for ash transport water) used to sluice fly ash or bottom ash to the impoundment. In other words, the volume of water that is currently used to sluice ash to an impoundment and
There is one particular type of plant practice that the final rule's anti-circumvention provision does not apply to. Many industry commenters noted that they use ash transport water in their FGD scrubber. They stated that this practice is preferable to using a fresh water source and allows for an overall reduction in source water withdrawals. They further stated that, under the final rule, any wastewater that passes through the scrubber would undergo significant treatment in order to meet the final FGD wastewater limitations and standards. EPA agrees, in part, with these comments. As explained above, EPA does not agree that using wastewater from one industrial process as makeup water in another industrial process necessarily results in a net reduction in water withdrawals. EPA does agree, however, that using wastewater from an industrial process as makeup water in another industrial process may be preferable to using a fresh water source. EPA is mindful of the CWA's pollutant discharge elimination goal, but also wants to promote opportunities for water reuse. Furthermore, as explained in Section V, EPA recognizes the extensive changes in this industry, and it wants to provide flexibility to plants in managing their wastewater and operations, as well as preserve the ability of plants to retain existing approaches where it is consistent with the CWA's goals. While EPA would not choose to promote these considerations where it resulted in no further progress toward the pollutant discharge elimination goal of the Act, in the case of using ash transport water in an FGD scrubber, since any resulting wastewater discharges would still be required to meet BAT or PSES requirements based on either chemical precipitation plus biological treatment or chemical precipitation plus evaporation under this final rule, EPA decided not to apply the anti-circumvention provision to this particular practice.
The final rule does not establish an anti-circumvention provision that would have required internal monitoring to demonstrate compliance with certain numeric limitations and standards. Some public commenters argued that the proposed provision was unduly restrictive, and they stated that EPA already has authority to accomplish the goal of this particular provision, which is to ensure that wastestreams are being treated rather than simply diluted. EPA agrees with these commenters and thus decided that existing rules, along with the guidance in Section XVI.A.4 of this preamble and TDD Section 14, provide appropriate flexibility to steam electric power plants to combine wastestreams with similar pollutants and treatability, while adequately addressing EPA's concern that plants meet the effluent limitations and standards in this rule through treatment and control strategies, rather than through dilution. Furthermore, some commenters raised concerns that the proposed provision would be a disincentive for plants to internally re-use the treated wastewater within the plant, particularly when the re-use eliminates the discharge of the wastewater. For example, they stated that some steam electric power plants might opt to use a wet scrubber's FGD wastewater as reagent make-up for a new dry scrubber in an integrated design which would essentially evaporate the wet FGD wastewater. EPA notes that plants that internally reuse wastestreams for which EPA is establishing numeric limitations and standards (
The final rule also does not establish an anti-circumvention provision that would have required permittees to use EPA-approved analytical methods that are sufficiently sensitive to provide reliable, quantified results at levels necessary to demonstrate compliance with the final effluent limitations and standards because another recently promulgated rule already accomplishes this. As public commenters pointed out, EPA was conducting a rulemaking on that topic; and, in August 2014, EPA published a rule requiring the use of sufficiently sensitive analytical test methods when completing any NPDES permit application. Moreover, the NPDES permit authority must prescribe that only sufficiently sensitive methods be used for analyses of pollutants or pollutant parameters under an NPDES permit where EPA has promulgated a CWA method for analysis of that pollutant. That rule clarifies that NPDES applicants and permittees must use EPA-approved analytical methods that are capable of detecting and measuring the pollutants at, or below, the applicable water quality criteria or permit limits.
As EPA proposed to do, the final rule corrects a typographical error in the previously established PSNS for cooling tower blowdown. As is clear from the development document for the 1982 rulemaking, as well as the previously promulgated NSPS for cooling tower blowdown, EPA inadvertently omitted a footnote in the table that appeared in 40 CFR 423.17(d)(1). The footnote reads “No detectable amount,” and it applies to the effluent standard for 124 of the 126 priority pollutants contained in chemicals added for cooling tower maintenance. See “Development Document for Final Effluent Guidelines, New Source Performance Standards and Pretreatment Standards for the Steam Electric Power Generating Point Source Category,” Document No. EPA 440/1-82/029. November 1982.
In addition, the final rule contains three minor modifications to the wording of the applicability provision in the steam electric power generating ELGs to reflect EPA's longstanding interpretation and implementation of the rule. These revisions do not alter the universe of generating units regulated by the ELGs, nor do they impose compliance costs on the industry. Instead, they remove potential ambiguity in the regulations by revising the text to more clearly reflect EPA's longstanding interpretation.
First, the applicability provision in the previous ELGs stated, in part, that the ELGs apply to “an establishment primarily engaged in the generation of electricity for distribution and sale. . . .” 40 CFR 423.10. The final rule revises that phrase to read “an establishment whose generation of electricity is the predominant source of revenue or principal reason for operation. . . .” The final rule thus
Second, the final rule clarifies that fuels derived from fossil fuel are within the scope of the ELGs. The previous ELGs stated, in part, that they apply to discharges resulting from the generation of electricity “which results primarily from a process utilizing fossil-type fuels (coal, oil, or gas) or nuclear fuel. . . .” 40 CFR 423.10. Because a number of fuel types are derived from fossil fuels, and thus are fossil fuels themselves, the final rule explicitly mentions and gives examples of such fuels. Thus, the rule reads that the ELGs apply to discharges resulting from the operation of a generating unit “whose generation results primarily from a process utilizing fossil-type fuel (coal, oil, or gas), fuel derived from fossil fuel (
Third, the final rule clarifies the applicability provision to reflect the current interpretation that combined cycle systems are subject to the ELGs. The ELGs apply to electric generation processes that utilize “a thermal cycle employing the steam water system as the thermodynamic medium.” 40 CFR 423.10. EPA's longstanding interpretation is that the ELGs apply to discharges from all electric generation processes with at least one prime mover that utilizes steam (and that meet the other applicability factors in 40 CFR 423.10). Combined cycle systems, which are generating units composed of one or more combustion turbines operating in conjunction with one or more steam turbines, are subject to the ELGs. The combustion turbines for a combined cycle system operate in tandem with the steam turbines; therefore, the ELGs apply to wastewater discharges associated with both the combustion turbine and steam turbine portions of the combined cycle system. The final rule, therefore, clarifies that “[t]his part applies to discharges associated with both the combustion turbine and steam turbine portions of a combined cycle generating unit.”
EPA proposed to establish BAT/NSPS/PSES/PSNS requirements for non-chemical metal cleaning wastes equal to previously established BPT limitations for metal cleaning wastes.
By reserving limitations and standards for non-chemical metal cleaning waste in the final rule, the permitting authority must establish such requirements based on BPJ for any steam electric power plant discharged non-chemical metal cleaning wastes. As part of this determination, EPA expects that the permitting authority would examine the historical permitting record for the particular plant to determine how discharges of non-chemical metal cleaning waste had been permitted in the past, including whether such discharges had been treated as low volume waste sources or metal cleaning waste. See Section XVI.
EPA proposed to include BMPs in the ELGs that would require plant operators to conduct periodic inspections of active and inactive surface impoundments to ensure their structural integrity and to take corrective actions where warranted. The proposed BMPs were largely similar to those proposed for the CCR rule, except for the closure requirements. EPA took comments on whether establishment of BMPs was more appropriate under the authority of the Resource Conservation and Recovery Act (RCRA) or the CWA. While some commenters asked EPA to establish BMPs in the final rule, many others urged EPA not to do so, arguing that BMPs are better suited for the CCR rule. Because EPA promulgated BMPs in the CCR rule, to avoid unnecessary duplication, this rule does not establish BMPs.
EPA evaluated the costs and associated impacts of the ELGs on existing generating units at steam electric power plants, and on new sources to which the ELGs may apply in the future. See TDD Section 9. This section provides an overview of the methodology EPA used to assess the costs and the economic impacts of the final ELGs and summarizes the results of these analyses. See the RIA for additional detail.
EPA used certain indicators to assess the economic achievability of the ELGs for the steam electric industry as a whole, as required by CWA section 301(b)(2)(A). These values were compared to a baseline described elsewhere in this document. For existing sources, EPA considered the number of generating units and plants expected to close due to the ELGs, and their generating capacity relative to total capacity (see Section IX.C.1.b). Although not used as the sole criterion to determine economic achievability, EPA also analyzed the ratio of compliance costs to revenue to estimate the number of plants and their owning
EPA first estimated plant-specific costs to control discharges at existing generating units at steam electric power plants to which the final ELGs apply (existing sources). For all applicable wastestreams, EPA assessed the operations and treatment system components in place at a given unit in the baseline (or expected to be in place given other existing rules), identified equipment and process changes that the plant would likely make to meet the final ELGs, and estimated the cost to implement those changes. As explained in Section V, since proposal, EPA accounted for additional announced unit retirements, conversions, and relevant operational changes, as well as changes plants are likely to make in response to the CCR and CPP rules. As a result, the number of plants projected to incur non-zero compliance costs is about 50 percent less than that estimated at proposal. As appropriate, EPA also accounted for cost savings associated with these equipment and process changes (
EPA annualized one-time costs and costs recurring on other than an annual basis over a specific useful life, implementation, and/or event recurrence period, using a rate of seven percent. For capital costs and initial one-time costs, EPA used 20 years. For O&M costs incurred at intervals greater than one year, EPA used the interval as the annualization period (3 years, 5 years, 6 years, 10 years). EPA added annualized capital, initial one-time costs, and the non-annual portion of O&M costs to annual O&M costs to derive total annualized plant costs.
EPA calculated total industry costs by applying survey weights to the plant-specific annualized costs and summing them. For the assessment of industry costs, EPA considered costs on both a pre-tax and after-tax basis. Pre-tax annualized costs provide insight on the total expenditure as incurred, while after-tax annualized costs are a more meaningful measure of impact on privately owned for-profit plants, and incorporate approximate capital depreciation and other relevant tax treatments in the analysis. EPA uses pre- and/or after-tax costs in different analyses, depending on the concept appropriate to each analysis (
Social costs are the costs of the rule from the viewpoint of society as a whole, rather than regulated facilities only. In calculating social costs, EPA tabulated the pre-tax costs in the year when they are estimated to be incurred. EPA assumed that all plants upgrading their systems in order to meet the effluent limitations and standards would do so sometime over a five-year period, during the implementation period for this rule. Given the implementation dates in this rule, and the fact that permitting authorities have to incorporate the final effluent limitations into NPDES permits (which have five-year terms) before they become applicable, this assumption is a reasonable estimate.
EPA performed the social cost analysis over a 24-year analysis period, which combines the length of the period during which plants are anticipated to install the control technologies and the useful life of the longest-lived technology installed at any facility (20 years). EPA calculated social cost of the final rule for existing generating units at steam electric power plants using both a three percent discount rate and an alternative discount rate of seven percent.
Social costs include costs incurred by both private entities and the government (
Table IX-2 presents the total annualized social cost of the final ELGs on existing generating units at seam electric power plants, calculated using three percent and seven percent discount rates.
The value presented in Table IX-2 for the seven percent discount rate is slightly lower than the comparable industry costs (pre-tax) in Table IX-1 (
EPA assessed the economic impacts of this rule in two ways: (1) A screening-level assessment of the cost impacts on existing generating units at steam electric power plants units and the entities that own those plants, based on comparison of costs to revenue; and (2) an assessment of the impact of this rule within the context of the broader electricity market, which includes an assessment of incremental plant closures attributable to this rule.
The following sections summarize the findings for these analyses. The RIA discusses the methods and results in greater detail.
The first set of cost and economic impact analyses—including entity-level impacts at both the steam electric power plant and parent company levels—reflects baseline operating characteristics of steam electric power plants incurring costs and assumes no changes in those baseline operating characteristics (
The second set of analyses look at broader electricity market impacts taking into account the interconnection of regional and national electricity markets. It also looks at the distribution of impacts at the plant level. This second set of analyses provides insight on the impacts of the final rule on steam electric power plants, as well as the electricity market as a whole, including generation capacity closure and changes in generation and wholesale electricity prices.
As noted in the introduction to this section, EPA used results from the screening analysis of plant- and entity-level impacts, together with projected capacity closure from the market model, to determine that the final rule is economically achievable.
EPA conducted a screening-level analysis of the rule's potential impact to existing generating units at steam electric power plants and parent entities based on cost-to-revenue ratios. For each of the two levels of analysis (plant and parent entity), the Agency assumed, for analytic convenience and as a worst-case scenario, that none of the costs would be passed on to consumers through electricity rate increases and would instead be absorbed by the steam electric power plants and their parent entities. This assumption overstates the impacts of the final rule since steam electric power plants that operate in a regulated market may be able to recover some of the increased production costs to consumers through increased electricity prices. It is, however, an appropriate assumption for a screening-level, upper-bound estimate of the potential cost impacts.
Table IX-3 summarizes the plant-level cost-to-revenue analysis results for the final rule. The cost-to-revenue ratios provide screening-level indicators of potential economic impacts. Plants incurring costs below one percent of revenue are unlikely to face economic impacts, while plants with costs between one percent and three percent of revenue have a higher chance of facing economic impacts, and plants incurring costs above three percent of revenue have a still higher probability of economic impacts. EPA estimates that the vast majority of steam electric power plants (1,034 plants or 96 percent of the universe) to which the final rule apply will incur annualized costs amounting to less than one percent of revenue. In fact, most of these plants will incur no cost at all. Only four percent of plants have costs between one percent and three percent of revenue (38 plants), and less than one percent of plants have costs above three percent of revenue (8 plants). The small fractions of steam electric power plants with costs to revenue ratios exceeding the one percent and three percent thresholds suggest that the final limitations and standards are economically achievable for the industry as a whole.
For each parent entity, EPA compared the total annualized after-tax costs and the total revenue for the entity (see Chapter 4 of the RIA report for details). EPA considered two approximate bounding cases to analyze costs and revenue for the owners of all existing units at steam electric power plants, based on the weights developed from the industry survey. These cases, which are described in more detail in Chapter 4 of the RIA, provide a range of estimates for the number of entities incurring costs and the costs incurred by any entity owning an existing generating unit at a steam electric power plant.
Table IX-4 summarizes the results of the entity-level analysis of the final rule for the two analytic cases.
Similar to the plant-level analysis above, cost-to-revenue ratios provide screening-level indicators of potential economic impacts, this time to the owning entities; higher ratios suggest a higher probability of economic impacts. As presented in Table IX-4, EPA estimated that the number of entities owning existing generating units at steam electric power plants ranges from 243 (lower-bound estimate) to 507 (upper-bound estimate), depending on the assumed ownership structure of plants not surveyed. EPA estimates that 90 percent to 92 percent of parent entities will either incur no costs or the annualized cost they incur to meet the final limitations and standards will represent less than one percent of their revenues, under the lower- and upper-bound cases, respectively.
Overall, this screening-level analysis shows that the entity-level costs are low in comparison to the entity-level revenues; very few entities are likely to face economic impacts at any level. This finding supports EPA's determination that the final rule is economically achievable by the steam electric power generation industry as a whole.
In analyzing the impacts of regulatory actions affecting the electric power sector, EPA has used IPM, a comprehensive electricity market optimization model that can evaluate such impacts within the context of regional and national electricity markets. The model is designed to evaluate the effects of changes in generating unit-level electric generation costs on the total cost of electricity supply, subject to specified demand and emissions constraints.
Use of a comprehensive, market analysis system is important in assessing the potential impact of the regulation because of the interdependence of electric generating units in supplying power to the electric transmission grid. Increases in electricity production costs at some generating units can have a range of broader market impacts affecting other generating units, including the likelihood that various units are dispatched, on average. The analysis also provides important insight on steam electric capacity closures (
EPA used version 5.13 of IPM to analyze the impacts of the final rule. IPM V5.13 is based on an inventory of U.S. utility- and non-utility-owned boilers and generators that provide power to the integrated electric transmission grid, including plants to which the ELGs apply. IPM V5.13 embeds a baseline energy demand forecast that is derived from DOE's “Annual Energy Outlook 2013” (AEO 2013). IPM V5.13 also incorporates in its analytic baseline the expected compliance response to existing regulatory requirements for air regulations affecting the power sector.
In contrast to the screening-level analyses, which are static analyses and do not account for interdependence of electric generating units in supplying power to the electric transmission grid, IPM accounts for potential changes in the generation profile of steam electric and other units and consequent changes in market-level generation costs, as the electric power market responds to higher generation costs for steam electric units due to the ELGs. Additionally, in contrast to the screening-level analyses in which EPA assumed no cost pass through of the final rule costs, IPM depicts production activity in wholesale electricity markets where some recovery of compliance costs through increased electricity prices is possible but not guaranteed.
In analyzing the final ELGs, EPA specified additional fixed and variable costs that are expected to be incurred by specific steam electric power plants and generating units to comply with the ELGs (the costs discussed in Section IX.A). EPA then ran IPM including these additional costs to determine the dispatch of electric generating units that would meet projected demand at the lowest costs, subject to the same constraints as those present in the analysis baseline. The estimated changes in plant-specific and unit-specific production levels and costs—and, in turn, changes in total electric power sector costs and production profile—are key data elements in evaluating the expected national and regional effects of the ELGs, including closures of steam electric generating units.
EPA considered impact metrics of interest at three levels of aggregation: (1) Impact on national and regional electricity markets (all electric power generation, including steam and non-steam electric power plants), (2) impact on steam electric power plants as a group, and (3) impact on individual steam electric power plants incurring costs. Chapter 5 of the RIA discusses the first analysis. The sections below summarize the two analyses focusing on steam electric power plants, which are further described in Chapter 5 of the RIA.
All results presented below are representative of modeled market conditions in the years 2028-2033, by which time all plants will meet the effluent limitations and standards. Costs are reflective of costs in the modeled years.
Table IX-5 reports results for existing generating units at steam electric power plants, as a group. EPA looked at the following metrics: (1) Incremental early retirements and capacity closures, calculated as the difference between capacity under the ELGs and capacity under the baseline, which includes both full plant closures and partial plant closures (unit closures) in aggregate capacity terms; (2) incremental capacity closures as a percentage of baseline capacity; (3) post-compliance change in electricity generation; (4) post-compliance changes in variable production costs per MWh, calculated as the sum of total fuel and variable O&M costs divided by net generation; and (5) changes in annual costs (fuel, variable O&M, fixed O&M, and capital). Items (1) and (2) provide important insight for determining the economic achievability of the ELGs.
Under the final rule, variable production costs at steam electric power plants increase by approximately 0.3 percent at the national level. The resulting net change in total capacity for steam electric power plants is very small. For the group of steam electric power plants, total capacity decreases by 843 MW or approximately 0.2 percent of the 359,982 MW baseline capacity, corresponding to a net closure of two units, or when aggregating to the level of steam electric generating plants, one net plant closure.
The change in total generation is an indicator of how steam electric power plants fare, relative to the rest of the electricity market. While at the market level there is essentially no projected change in total electricity generation,
These findings of very small national effects (and similarly very small regional effects, as described in Chapter 5 of the RIA) in these impact metrics support EPA's conclusion that the final rule will have little economic consequence for the steam electric power generating industry and the electricity market and is, therefore, economically achievable.
The analysis of changes in individual plants as a result of the final rule is detailed in Chapter 5 of the RIA. The results indicate that steam electric plants experience only slight effects—no change, or less than a one percent reduction or one percent increase. See Table 5-4 in the RIA. Only 17 plants see their capacity utilization reduced by more than one percent, while 25 plants increase their capacity utilization by more than one percent. The estimated change in variable production costs is higher; 43 plants have an increase in variable production costs exceeding one percent; for seven of these plants, this increase exceeds three percent, but again the vast majority of plants experience a less than one percent increase in variable production costs. Results for the subset of plants incurring costs further support the conclusion that the effects of the final rule on the steam electric industry will be small.
EPA also evaluated the expected costs of meeting the final standards for new sources. The incremental cost associated with complying with the final NSPS and PSNS varies depending on the types of processes, wastestreams, and waste management systems that the plant would have installed in the absence of the new source requirements. EPA estimated capital and O&M costs for several scenarios that represent the different types of operations present at existing steam electric power plants or typically included at new steam electric power plants. These scenarios capture differences in the plant status (building a generating unit at a new location versus adding a new generating unit at an existing power plant), presence of on-site impoundments or landfills, type of ash handling, type of FGD systems in service, and type of leachate collection and handling.
EPA assessed the possible impact of this final rule on new units by comparing the incremental costs for new units to the overall cost of building and operating new scrubbed coal units, on an annualized basis.
EPA estimated costs of a new coal unit using the overnight
The comparison suggests that costs associated with meeting the final NSPS/PSNS represent a relatively small fraction of overnight capital costs of a new unit (less than one percent) and a similarly small fraction of non-fuel O&M and fuel costs (less than one percent). On an annualized basis, costs for meeting standards specified in the final rule are 0.3 to 3.3 percent of annualized costs for new coal generating capacity. Based on this assessment, EPA concludes that the final rule does not present a barrier to entry.
EPA took a similar approach to the one described above for plant-specific costs in estimating pollutant reductions associated with the final rule. For each wastestream
While plants are not required to implement the specific technologies that form the bases for the final limitations and standards, EPA calculated the pollutant loadings for plants that implement these technologies to estimate the pollutant reductions associated with the rule. See TDD Section 10 for a detailed discussion of EPA's pollutant loadings and reductions methodologies.
Table X-1 presents estimated industry-level pollutant reductions for the final rule.
The final rule establishes a zero discharge limitation and standard applicable to all pollutants in fly ash transport water, bottom ash transport water, and FGMC wastewater; therefore, no effluent concentration data were used to set the limitations and standards for these wastestreams. The final rule contains new numeric effluent limitations and standards that apply to discharges of FGD wastewater and gasification wastewater at new and existing sources, and to discharges of combustion residual leachate at new sources.
EPA developed the new numeric effluent limitations and standards in this final rule using long-term average effluent values and variability factors that account for variation in performance at well-operated facilities that employ the technologies that constitute the bases for control. EPA's methodology for derivation of limitations in ELGs is longstanding and has been upheld in court.
EPA's objective in establishing daily maximum limitations is to restrict the discharges on a daily basis at a level that is achievable for a plant that targets its treatment at the long-term average. EPA acknowledges that variability around the long-term average occurs during normal operations. This variability means that plants occasionally may discharge at a level that is higher (or lower) than the long-term average. To allow for these possibly higher daily discharges and provide an upper bound for the allowable concentration of pollutants that may be discharged, while still targeting achievement of the long-term average, EPA has established the daily maximum limitation. A plant that consistently discharges at a level near the daily maximum limitation would
EPA's objective in establishing monthly average limitations is to provide an additional restriction to help ensure that plants target their average discharges to achieve the long-term average. The monthly average limitation requires dischargers to provide ongoing control, on a monthly basis, that supplements controls imposed by the daily maximum limitation. In order to meet the monthly average limitation, a plant must counterbalance a value near the daily maximum limitation with one or more values well below the daily maximum limitation.
The TDD provides a detailed description of the data and methodology used to develop long-term averages, variability factors, and limitations and standards for the final rule. As a result of public comments, EPA expanded the data set used to calculate the BAT/PSES effluent limitations and standards for discharges of FGD wastewater from existing sources. Largely, this expanded data set includes additional self-monitoring data from plants operating
EPA identified certain data that warranted exclusion from the calculations of the limitations and standards because: (1) The samples were analyzed using an analytical method that is not approved in 40 CFR part 136 for NPDES permit purposes; (2) the samples were analyzed using an insufficiently sensitive analytical method (
Tables XI-1 and XI-2 present the effluent limitations and standards for FGD wastewater, gasification wastewater, and combustion residual leachate. For comparison, the tables also present the long-term average treatment performance calculated for these wastestreams. Due to routine variability in treated effluent, a power plant that targets discharging its wastewater at a level near the values of the daily maximum limitation or the monthly average limitation may experience frequent values exceeding the limitations. For this reason, EPA recommends that plants design and operate the treatment system to achieve the long-term average for the model technology. In doing so, a system that is designed to represent the BAT/NSPS level of control would be expected to meet the limitations.
EPA expects that plants will be able to meet their effluent limitations or standards at all times. If an exceedance is caused by an upset condition, the plant would have an affirmative defense to an enforcement action if the requirements of 40 CFR 122.41(n) are met. Exceedances caused by a design or operational deficiency, however, are indications that the plant's performance does not represent the appropriate level of control. For these final limitations and standards, EPA determined that such exceedances can be controlled by diligent process and wastewater treatment system operational practices, such as regular monitoring of influent and effluent wastewater characteristics and adjusting dosage rates for chemical additives to target effluent performance for regulated pollutants at the long-term average concentration for the BAT/NSPS technology. Additionally, some plants may need to upgrade or replace existing treatment systems to ensure that the treatment system is designed to achieve performance that targets the effluent concentrations at the long-term average. This is consistent with EPA's costing approach and its engineering judgment developed over years of evaluating wastewater treatment processes for steam electric power plants and other industrial sectors. EPA recognizes that, as a result of the final rule, some dischargers, including those that are operating technologies representing the technology bases for the final rule, may need to improve their treatment systems, process controls, and/or treatment system operations in order to consistently meet the effluent limitations and standards. This is consistent with the CWA, which requires that discharge limitations and standards reflect the best available technology economically achievable or the best available demonstrated control technology.
See DCN SE05733 for details of the calculation of the limitations and standards presented in the tables below.
The elimination or reduction of one form of pollution can create or aggravate other environmental problems. Therefore, CWA sections 304(b) and 306 require EPA to consider non-water quality environmental impacts (including energy requirements) associated with ELGs. Accordingly, EPA considered the potential impact of this rule on energy consumption, air emissions, and solid waste generation.
Table XII-1 presents the net increases in energy requirements for the final rule. EPA estimates that energy increases associated with this rule are less than 0.01 percent of the total electricity generated by all electric power plants and the fuel consumption increase is 0.002 percent of total fuel consumption by all motor vehicles in the U.S.
Table XII-2 presents the estimated net change in air emissions for the final rule. Table XII-2 shows that the estimated air emission increases are less than 0.04 percent of the total air emissions generated in 2009 by the electric power industry for the three pollutants evaluated.
EPA compared the estimated increase in solid waste generation to the amount of solids generated in a year by electric power plants throughout the U.S.—approximately 134 billion tons. The increase in solid waste generation associated with the final rule is less than 0.001 percent of the total solid waste generated by all electric power plants.
EPA estimates that, under the final rule, steam electric power plants will reduce their water withdrawal by 57 billion gallons per year (155 million gallons per day). See TDD Section 12.
Based on these analyses, EPA determined that the final BAT effluent limitations and PSES have acceptable non-water quality environmental impacts, including energy impacts.
Although not required to do so, EPA conducted an environmental assessment for the final rule, as it did for the proposed rule. The environmental assessment for the final rule reviewed currently available literature on the documented environmental and human health impacts of steam electric power plant wastewater discharges and
EPA's review of the scientific literature; documented cases of the extensive impacts of steam electric power plant wastewater discharges on human health and the environment; and a full description of EPA's modeling methodology and results are provided in the EA.
As discussed in the environmental assessment and proposed rule, current scientific literature indicates that steam electric power plant wastewaters such as fly ash transport water, bottom ash transport water, FGD wastewater, and combustion residual leachate contain large amounts of a wide range of harmful pollutants, some of which are toxic and bioaccumulative, and which cause significant, widespread detrimental environmental and human health impacts.
Discharges of steam electric power plant wastewaters present a serious public health concern due to the potential human exposure to toxic pollutants through consumption of contaminated fish and drinking water. Toxic pollutants that detrimentally affect human health that are commonly found in steam electric power plant wastewater discharges include mercury, lead, arsenic, cadmium, thallium, and selenium, along with numerous others (see EA Section 3). These pollutants are associated with a variety of documented adverse human health impacts. For example, human exposure to elevated levels of mercury for relatively short periods of time can result in kidney and brain damage. Pregnant women who are exposed to mercury can pass the contaminant to their developing fetus, leading to possible toxic injury of the fetal brain and damage to other parts of the nervous system. Human exposure to elevated levels of lead can cause serious damage to the brain, kidneys, nervous system, and red blood cells, especially in children. Arsenic is associated with an increased risk of liver and bladder cancer in humans, as well as non-cancer impacts including dermal, cardiovascular, respiratory, and reproductive effects such as excess incidences of miscarriages, stillbirths, preterm births, and low birth weights. Chronic exposure to cadmium, a probable carcinogen, can lead to kidney failure, lung damage, and weakened bones. Human exposure to elevated levels of thallium can lead to neurological symptoms, hair loss, gastrointestinal effects, liver and kidney damage, and reproductive and developmental damage. Long-term exposure to selenium can damage the kidney, liver, and nervous and circulatory systems.
The pollutants in steam electric power plant wastewater can bioaccumulate within fish and other aquatic wildlife in the receiving waters and subsequently be transferred to recreational and subsistence fishers who consume these contaminated fish, potentially resulting in the acute and chronic health impacts described above. Certain populations are particularly at risk, including women who are pregnant, nursing, or may become pregnant, and communities relying on consumption of fish from contaminated waters as a major food source.
Discharges of steam electric power plant pollutants to surface waters also have the potential to contaminate drinking water sources, causing potential problems for drinking water systems and, if left untreated, potential adverse health effects. A recent study indicates that pollutants in ash and FGD wastewater discharges exceeded MCLs in every surface water that was monitored in North Carolina during the study (see DCN SE01984). Nitrogen discharges from steam electric power plants can contribute, along with other sources, to harmful algal blooms. Harmful algal blooms can affect drinking water sources, such as the recent incident in Toledo, Ohio (see DCN SE04517).
Bromide discharges from steam electric power plants can contribute to the formation of carcinogenic DBPs in public drinking water systems. A recent study identified four drinking water treatment plants that experienced increased levels of bromide in their source water, and in some, a corresponding increase in the formation of brominated DBPs in the drinking water system, after the installation of wet FGD scrubbers at upstream steam electric power plants (see DCN SE04503).
Although not directly addressed by this final rule, ground water contamination from surface impoundments containing steam electric power plant wastewater also threatens drinking water sources. EPA identified more than 30 documented cases where ground water contamination from surface impoundments extended beyond the plant boundaries, illustrating the threat to ground water drinking water sources (see DCN SE04518). Where this final rule helps to reduce or eliminate the continued disposal or storage of steam electric power plant wastewater pollutants in unlined or leaking surface impoundments, potential impacts to ground water will also be reduced or eliminated.
The ecological impacts of steam electric power plant wastewater pollutants include both acute (
As discussed in Section V.G, EPA updated the environmental assessment for the final rule to respond to public comments and to better characterize the environmental and human health improvements associated with the final rule. Although not required to do so, EPA conducted an environmental assessment for the final rule. The environmental assessment reviewed currently available literature on the documented environmental and human health impacts of steam electric power plant wastewater discharges and conducted modeling to determine the cumulative impacts of pollution from the universe of steam electric power plants to which the final rule applies. EPA modeled both of the impacts of steam electric power plant discharges at baseline conditions and the improvements that will likely result after implementation of this rule. The final environmental assessment also incorporates changes to the industry profile to account for retirements, conversions, and operational changes
The environmental assessment modeling for the final rule consisted of (1) a steady-state, national-scale immediate receiving water (IRW) model that evaluated the discharges from steam electric power plants and focused on impacts within the immediate surface water where the discharges occur (approximately one to 10 kilometers [km] from the outfall),
Additionally, for the final rule, EPA updated and improved several input parameters for the IRW model, including fish consumption rates for recreational and subsistence fishers, the bioconcentration factor for copper, and benchmarks for assessing the potential for impacts to benthic communities in receiving waters.
The case-study modeling for the final rule is based on EPA's Water Quality Analysis Simulation Program (WASP), which accounts for fluctuations in receiving water flow rates by using daily stream flow monitoring data instead of one annual average flow rate for the receiving water, as used in the IRW. The case-study modeling accounts for pollutant transport and accumulation within receiving water reaches that are downstream from the discharge location, allowing for an assessment of environmental impacts over a larger portion of the receiving waterbody. The case study modeling also accounts for pollutant contributions from other point, nonpoint, and background sources, to the extent practical, using available data sources. EPA used the water quality results of the case-study modeling to supplement the results of the IRW model (see EA Section 8).
EPA improved its selenium bioaccumulation modeling for impacts on wildlife by developing and using an ecological risk model that predicts the risk of reproductive impacts among fish and waterfowl exposed to selenium from steam electric power plant wastewater discharges. The ecological risk model accounts for the bioaccumulation of selenium in aquatic organisms through dietary exposure (the food web), as contrasted with exposure only to dissolved selenium in the water column. Dietary exposure plays a more significant role in determining the extent of selenium bioaccumulation in aquatic organisms. The ecological risk model also accounts for the higher rates of selenium bioaccumulation that can occur in slow-flowing aquatic systems such as lakes and reservoirs, and the risk model translates selenium tissue concentrations into the predicted risk of adverse reproductive effects (
EPA focused its quantitative analyses on the environmental and human health impacts associated with exposure to toxic bioaccumulative pollutants via the surface water pathway. EPA focused the modeling on discharges of toxic bioaccumulative pollutants from a subset of evaluated wastestreams from steam electric power plants (fly ash and bottom ash transport water, FGD wastewater, and combustion residual leachate) into rivers/streams and lakes/ponds (including reservoirs).
The environmental assessment concentrates on impacts to aquatic life based on changes in surface water quality; impacts to aquatic life based on changes in sediment quality within surface waters; impacts to wildlife from consumption of contaminated aquatic organisms; and impacts to human health from consumption of contaminated fish and water. Table XIII-1 presents a list of the key environmental improvements projected within the immediate receiving waters due to the pollutant loading reductions under the final rule. These improvements are discussed in detail, with quantified results, in the EA.
EPA estimates a significant number of environmental and ecological improvements and reduced impacts to wildlife and humans from reductions in pollutant loadings under the final rule. More specifically, the environmental assessment evaluated (a) improvements in water quality, (b) reduction in impacts to wildlife, (c) reduction in number of receiving waters with potential human health cancer risks, (d) reduction in number of receiving waters with potential to cause non-cancer human health effects, (e) reduction in nutrient impacts, (f) reduction in other environmental impacts, and (g) other unquantified environmental improvements.
EPA expects significantly reduced contamination levels in surface waters and sediments under the final rule. EPA estimates that reduced pollutant loadings to surface waters will significantly improve water quality by reducing pollutant concentrations by an average of 56 percent within the immediate receiving waters of steam electric power plants where additional treatment technologies are installed as a result of this final rule. Based on the water quality component of the IRW model, which compares modeled receiving water concentrations to national recommended WQC and MCLs to assess changes in receiving water quality, the pollutants with the greatest number of water quality standard exceedances under baseline pollutant loadings include: Total arsenic, total thallium, total selenium, and dissolved cadmium. EPA estimates that almost half of the immediate receiving waters exceed a water quality standard under baseline loadings. EPA estimates that the number of immediate receiving waters with aquatic life exceedances, which are driven by high total selenium and dissolved cadmium concentrations, will be reduced under the final rule. EPA also estimates that the number of immediate receiving waters with human health water quality standards exceedances, primarily driven by high total arsenic and total thallium concentrations, will be reduced under the final rule.
Selenium is one of the primary pollutants documented in the literature as causing environmental impacts to fish and wildlife. EPA calculates that total selenium receiving water concentrations will be reduced by two-thirds under the final rule, leading to a reduction in the number of immediate receiving waters exceeding the freshwater chronic criteria for selenium.
While the case-study models and IRW model produced generally similar results for the five receiving waters included in both analyses, the case-study model reveals additional potential for baseline impacts to water quality, aquatic life, and human health that are not reflected in the IRW model. Case-study modeling also reveals that these potential impacts can extend beyond the immediate receiving water and into downstream waters, leading to the potential for more widespread environmental and human health effects than those shown with the IRW model. This is particularly true regarding water quality standard exceedances; in four of the five receiving waters included in both analyses, the case-study model indicates that the final rule will result in further reductions in water quality standard exceedances beyond those reflected in the IRW model.
As discussed in the EA, the RSEI modeling indicates that surface waters downstream from steam electric power plant wastewater discharges will also achieve water quality improvements under the final rule.
This final rule will also potentially help to both reduce ground water contamination and improve the availability of ground water resources by complementing the CCR rule. This rule provides strong incentives for plants to greatly reduce, if not entirely eliminate, disposal and treatment of steam electric power plant wastewater in unlined surface impoundments.
EPA expects that once the rule is implemented the number of immediate receiving waterbodies with potential impacts to wildlife will begin to be reduced by more than a half compared to baseline conditions under the final rule.
EPA determined that steam electric power plant wastewater discharges into lakes pose the greatest risk to piscivorous (fish eating) wildlife, with almost a half of lakes exceeding a protective benchmark for minks or eagles under baseline pollutant loadings (compared to about a third of rivers). Mercury and selenium are the primary pollutants with the greatest number of receiving waters with benchmark exceedances. EPA estimates that this rule will reduce the number of immediate receiving waters exceeding the benchmark for minks and eagles by approximately half for mercury and selenium. Additionally, as discussed in the EA, the downstream RSEI modeling indicates that surface waters downstream from steam electric power plant wastewater discharges will also achieve improvements in these wildlife benchmarks under the final rule.
For the final rule, EPA also performed modeling to estimate the risk of adverse reproductive effects among fish (
In addition, EPA estimates that the improvements to water quality, discussed above, will improve aquatic and wildlife habitats in the immediate and downstream receiving waters from steam electric power plant discharges. EPA determined that these water quality and habitat improvements will enhance efforts to protect threatened and endangered species. EPA identified four species with a high vulnerability to changes in water quality whose recovery will be enhanced by the pollutant reductions associated with the final rule.
EPA estimates that reductions in arsenic loadings from the final rule will result in a reduction in potential cancer risks to humans that consume fish exposed to steam electric power plant discharges. In addition, based on the downstream RSEI modeling, EPA estimates that numerous river miles downstream from steam electric discharges contain fish contaminated with inorganic arsenic that present cancer risks to at least one of the evaluated cohorts. The final rule substantially reduces this number of miles.
Exposure to toxic bioaccumulative pollutants poses risk of systemic and other effects to humans, including effects on the circulatory, respiratory, or digestive systems, and neurological and developmental effects. EPA estimates the final rule will significantly reduce the number of receiving waters with the potential to cause non-cancer health effects in humans who consume fish exposed to steam electric power plant pollutants.
Under baseline pollutant loadings, EPA determined that about half of immediate receiving waters present non-cancer health risks for one or more of the human cohorts due to elevated pollutant levels in fish. The final rule, once implemented, will begin to reduce this amount by approximately 50 percent for all the human cohorts that were evaluated. Non-cancer risks are caused primarily by mercury (as methylmercury), total thallium, and total selenium, and to a lesser degree, total cadmium pollutant loadings. Additionally, as discussed in the EA, the downstream RSEI modeling indicates that the final rule substantially
In addition to the assessment of non-cancer impacts described above, EPA also evaluated the adverse health effects to children who consume fish contaminated with lead from steam electric power plant wastewater. EPA estimates that the final rule will significantly reduce the associated IQ loss among children who live in recreational angler and subsistence fisher households. The final rule will also reduce the incidence of other health effects associated with lead exposure among children, including slowed or delayed growth, delinquent and anti-social behavior, metabolic effects, impaired heme synthesis, anemia, and impaired hearing. The final rule will also reduce IQ loss among children exposed in utero to mercury from maternal fish consumption. Section XIV.B.1 provides additional details on the benefits analysis of these reduced IQ losses.
The final rule will also result in additional non-cancer human health improvements beyond those discussed above, including reduced health hazards due to exposure to contaminants in waters that are used for recreational purposes (
The primary concern with nutrients (nitrogen and phosphorus) in steam electric power plant discharges is the potential for contributing to adverse impacts in waterbodies that receive nutrient discharges from multiple sources. Excessive nutrient loadings to receiving waters can significantly affect the ecological stability of freshwater and saltwater aquatic ecosystems and pose health threats to humans from the generation of toxins by cyanobacteria, which can thrive in nitrogen driven algal blooms (DCN SE04505).
Nine percent of surface waters receiving steam electric power plant wastewater discharges are impaired for nutrients. Although the concentration of nitrogen present in steam electric power plant discharges from any individual power plant is relatively low, the total nitrogen loadings from a single plant can be significant due to large wastewater discharge flow rates.
EPA projects that the final rule will reduce total nutrient loadings by steam electric power plants in their immediately downstream receiving waters by more than 99 percent. Section XIV provides additional details on the water quality benefits analysis of nutrient reductions, as determined using the SPARROW (Spatially Referenced Regressions On Watershed attributes) model.
The environmental assessment focused primarily on the quantification of environmental improvements within rivers and lakes from post-compliance pollutant reductions for toxic bioaccumulative pollutants and excessive nutrients. While extensive, the environmental improvements quantified do not encompass the full range of improvements anticipated to result from the final rule simply because some of the improvements have no method for measuring a quantifiable or monetizable improvement. EPA estimates post-compliance pollutant reductions from the final rule to result in much greater improvements than those quantified for wildlife, human health and the environment by:
• Reducing loadings of bioaccumulative pollutants to the broader ecosystem, resulting in the reduction of long-term exposures and sub-lethal ecological effects;
• Reducing sub-lethal chronic effects of toxic pollutants on aquatic life not captured by the national recommended WQC;
• Reducing loadings of pollutants for which EPA did not perform water quality modeling in support of the environmental assessment (
• Mitigating impacts to aquatic and aquatic-dependent wildlife population diversity and community structures;
• Reducing exposure of wildlife to pollutants through direct contact with combustion residual surface impoundments and constructed wetlands built as treatment systems at steam electric power plants; and
• Reducing the potential for the formation of harmful algal blooms.
Data and analytical limitations prevent modeling the scale and complexity of the ecosystem processes potentially impacted by steam electric power plant wastewater, resulting in the inability to quantify all potential improvements. However, documented site-specific impacts in the literature reinforce that these impacts are common in the environments surrounding steam electric power plants and fully support the conclusion that reducing pollutant loadings will further reduce risks to human health and wildlife and prevent damage to the environment.
Although the environmental assessment quantifies impacts to wildlife that consume fish contaminated with pollutants from steam electric power plant wastewater, it does not capture the full range of exposure pathways through which bioaccumulative pollutants can enter the surrounding food web. Wildlife can encounter toxic bioaccumulative pollutants from discharges of the evaluated wastestreams through a variety of exposure pathways such as direct exposure, drinking water, consumption of contaminated vegetation, and consumption of contaminated prey other than fish and invertebrates. Therefore, the quantified improvements underestimate the complete loadings of bioaccumulative pollutants that can impact wildlife in the ecosystem. The final rule will lower the total amount of toxic bioaccumulative pollutants entering the food web near steam electric power plants.
EPA also estimates that reductions in pollutant loadings will lower the occurrence of sub-lethal effects associated with many of the pollutants in steam electric power plant wastewater that are not captured by comparisons with national recommended WQC for aquatic life. Chronic effects such as decreased reproductive success, changes in metabolic rates, decreased growth rates, changes in morphology (
The post-compliance pollutant reductions associated with the final rule will also decrease the environmental impacts to wildlife exposed to pollutants through direct contact with surface impoundments and constructed wetlands at steam electric power plants. Documented site-specific impacts demonstrate that wildlife living in close proximity to combustion residual impoundments exhibit elevated levels of arsenic, cadmium, chromium, lead, mercury, selenium, and vanadium. Multiple studies have linked these “attractive nuisance” areas (contaminated impoundments at a steam electric power plant that attract wildlife for nesting or feeding) to diminished reproductive success. EPA estimates that the post-compliance pollutant reductions will decrease the exposure of wildlife populations to toxic pollutants and reduce the risks for impacts on reproductive success.
Other improvements will occur to other resources that are associated directly or indirectly with the final rule. These include aesthetic and recreational improvements, reduced economic impacts such as clean up and treatment costs in response to contamination or impoundment failures, reduced injury associated with pond failures, reduced ground water contamination, support for threatened and endangered species, reduced water usage and reduced air emissions. Section XIV provides additional details on the monetized benefits of these improvements.
This section summarizes EPA's estimates of the national environmental benefits expected to result from reduction in steam electric power plant wastewater discharges described in Section X and the resultant environmental effects summarized in Section XIII. The BCA Report provides additional details on benefits methodologies and analyses, including uncertainties and limitations. The analysis methodology is generally the same as that used by EPA for analysis of the proposed rule, but with revised inputs and assumptions that reflect updated data and address comments the Agency received on the proposed rule, including additional categories of benefits the Agency analyzed for the final rule.
Table XIV-1 summarizes benefit categories associated with the final rule and notes which categories EPA was able to quantify and monetize. Analyzed benefits fall within five broad categories: Human health benefits from surface water quality improvements, ecological conditions and recreational use benefits from surface water quality improvements, market and productivity benefits, air-related benefits (which include both human health and climate change-related effects), and water withdrawal benefits. Within these broad categories, EPA was able to assess benefits with varying degrees of completeness and rigor. Where possible, EPA quantified the expected effects and estimated monetary values. However, data limitations and gaps in the understanding of how society values certain water quality changes prevent EPA from quantifying and/or monetizing some benefit categories.
The following section summarizes EPA's analysis of the benefits that the Agency was able to quantify and monetize (identified in the second column of Table XIV-1). The final rule will also provide additional benefits that the Agency was not able to monetize. The BCA Report further describes some of these additional non-monetized benefits.
Reduced pollutant discharges from steam electric power plants generate human health benefits in a number of ways. As described in Section XIII, exposure to pollutants in steam electric power plant discharges via consumption of fish from affected waters can cause a wide variety of adverse health effects, including cancer, kidney damage, nervous system damage, fatigue, irritability, liver damage, circulatory damage, vomiting, diarrhea, brain damage, IQ loss, and many others. Because the final rule will reduce discharges of steam electric pollutants into waterbodies that receive, or are downstream from, these discharges, it is likely to result in decreased incidences of associated illnesses.
Due to data limitations and uncertainties, EPA is able to monetize only a subset of the health benefits associated with reductions in pollutant discharges from steam electric power plants. EPA analyzed the following measures of human health-related benefits: Reduced lead-related IQ loss in children aged zero to seven from fish consumption; reduced cardiovascular disease in adults from lead and arsenic exposure from fish consumption; reduced mercury-related IQ loss in children exposed in utero due to maternal fish consumption; and reduced cancer risk in adults due to arsenic exposure from fish consumption. EPA monetized these human health benefits by estimating the change in the expected number of individuals experiencing adverse human health effects in the populations exposed to steam electric discharges and/or reduced exposure levels, and valuing these changes using a variety of monetization approaches.
These are not the only human health benefits expected to result from the final rule. EPA also estimated additional human health benefits derived from changes in air emissions. These additional benefits are discussed separately in Section XIV.B.4.
EPA estimated health risks from the consumption of contaminated fish from waterbodies within 50 miles of households. EPA used Census Block population data, state-specific average fishing rates, and data on fish consumption advisories to estimate the exposed population. EPA used cohort-specific fish consumption rates and waterbody-specific fish tissue concentration estimates to calculate exposure to steam electric pollutants. Cohorts were defined by age, sex, race/ethnicity, and fishing mode (recreational/subsistence). EPA used these data to quantify and monetize the following six categories of human health benefits, which are further detailed in the BCA Report:
• Benefits from Reduced IQ Loss in Children from Lead Exposure via Fish Consumption.
• Benefits from Reduced Need for Specialized Education for Children from Lead Exposure via Fish Consumption.
• Benefits from Reduced Incidence of Cardiovascular Disease from Lead Exposure via Fish Consumption.
• Benefits of Reduced In Utero Mercury Exposure via Maternal Fish Consumption.
• Benefits from Reduced Incidence of Cancer from Arsenic Exposure via Fish Consumption.
• Benefits from Reduced Incidence of Cardiovascular Disease from Arsenic Exposure via Fish Consumption.
Table XIV-2 summarizes monetized human health benefits from surface water quality improvements. EPA estimates that the final rule will provide human health benefits valued at $16.5 to $17.9 million annually, using a three percent discount rate, and $11.3 to $11.6 million, using a seven percent discount rate. In addition, EPA estimated health benefits associated with changes in air emissions, as discussed in Section XIV.B.4.
EPA expects the final rule will provide ecological benefits by improving ecosystems (aquatic and terrestrial) affected by the electric power industry's discharges. Benefits associated with changes in aquatic life include restoration of sensitive species, recovery of diseased species, changes in taste-and odor-producing algae, changes in dissolved oxygen (DO), increased assimilative capacity of affected waters, and improved recreational activities. Activities such as fishing, swimming, wildlife viewing, camping, waterfowl hunting, and boating may be enhanced when risks to aquatic life and perceivable water quality effects associated with pollutants are reduced.
EPA was able to monetize several categories of ecological benefits associated with this final rule, including recreational use and nonuse (existence, bequest, and altruistic) benefits from improvements in the health of aquatic environments, and nonuse benefits from increased populations of threatened and endangered species. As shown in Table XIV-1, the Agency quantified and monetized two main benefit subcategories, discussed below: (1) Benefits from improvements in surface water quality, and (2) benefits from improved protection of threatened and endangered (T&E) species.
EPA expects the final rule will improve aquatic habitats and human welfare by reducing concentrations of harmful pollutants such as arsenic, cadmium, chromium, lead, mercury, selenium, nitrogen, phosphorus, and suspended sediment. As a result, some of the waters that were not usable for recreation under the baseline discharge conditions may become usable following the rule, thereby benefiting recreational users. Waters that have been used for recreation under the baseline conditions can become more attractive by making recreational trips even more enjoyable. The final rule is also expected to generate nonuse benefits from bequest, altruism, and existence motivations. Individuals may value knowing that water quality is being maintained, ecosystems are being protected, and species populations are healthy, independent of any use.
EPA estimates that approximately 19,600 reach miles will improve as a result of the final rule, as indicated by a higher post-compliance water quality index (WQI) score. The WQI translates water quality measurements, gathered for multiple parameters that are indicative of various aspects of water quality, into a single numerical indicator that reflects achievement of quality consistent with the suitability for certain uses.
EPA estimated monetized benefit values using a revised version of the meta-regression of surface water valuation studies used in the benefit-cost analysis of the proposed ELGs (DCN SE03172). Using a meta-dataset of 51 studies published between 1985 and 2011, EPA developed a meta-regression model that predicts how marginal willingness to pay (WTP) for water quality improvements depends on a variety of methodological, population, resource, and water quality change characteristics. EPA developed two versions of the meta-regression model: The first model (Model 1) provides a central estimate of non-market benefits, while the second model (Model 2) provides a range of estimates to account for uncertainty in the resulting WTP values. Chapter 4 of the BCA provides more details on the meta-regression models and analysis.
EPA estimated economic values of water quality improvements at the Census block group level. Water quality improvements are measured as a length-weighted average of the changes in WQI for waters within 100 miles of the center of each Census block; these waters includes both waters improving as a result of the final rule and waters not affected by steam electric plant discharges but which may be substitutes for improved waters.
EPA first estimated annual household marginal WTP values for a given Census block group using the meta- regression
EPA then estimated total WTP values by multiplying the annual household WTP values by the total number of households within a Census block group. EPA annualized the stream of future benefits, expressed in 2013 dollars, using both 3 and 7 percent discount rates.
Total national benefits are the sum of estimated Census block group-level WTP across all block groups for which at least one waterbody within 100 miles is improved.
Average annual household WTP estimates for the final ELGs range from $0.32 on the low end to $1.77 on the high end, with a central estimate of $0.45. An estimated 84.5 million households reside in Census block groups within 100 miles of affected reaches. The total annualized benefits of water quality improvements resulting from reduced metal, nutrient, and sediment pollution in the approximately 19,600 reach miles improving under the final ELGs range from $23.2 million to $129.5 million with a central estimate of $31.3 million using a three percent discount rate and $18.5 million to $103.4 million with a central estimate of $25.1 million using a seven percent discount rate.
To assess the potential for impacts on T&E species (both aquatic and terrestrial), EPA analyzed the overlap between waters currently exceeding wildlife-based national recommended WQC, but expected to have no wildlife national recommended WQC exceedances as a result of the final rule, and the known critical habitat locations of approximately 631 T&E species. EPA examined the life history traits of potentially affected T&E species to categorize species by the potential for population impacts likely to occur as a result of changes in water quality. Chapter 5 of the BCA Report details the methodology.
EPA determined that of 15 species whose recovery may be enhanced by the final rule, three fish species and one salamander species may experience changes in population growth rates as a result of the final rule. To quantify the benefits to T&E species, EPA weighted minimal population growth assumptions (0.5, 1, or 1.5 percent) by the percent of reaches used by T&E species that are expected to meet wildlife-based national recommended WQC because of the final rule.
The T&E species expected to benefit from the rule include one species of sturgeon and two species of minnows. All of these species have nonuse values, including existence, bequest, altruistic, and ecological service values, apart from human uses or motives. EPA estimated the economic values of increased T&E species populations using a benefit function transfer approach based on a meta-analysis of 31 stated preference studies eliciting WTP for these changes (Richardson and Loomis 2009). Because the underlying metadata do not include amphibian valuation studies, EPA was unable to monetize any benefits for potential population increases of Hellbender salamander. EPA estimates annualized benefits to T&E species of approximately $0.02 million, using either a three percent or seven percent discount rate.
Operational changes that plants choose to make to meet requirements in the final rule may cause some plants to reduce their reliance on impoundments to handle their waste. EPA expects these changes to reduce the magnitude of impoundment failures and the resulting accidental, and sometimes catastrophic releases, of CCRs.
To assess the benefits associated with changes in impoundment use, EPA estimated the costs associated with expected releases under baseline conditions (assuming no change in operations relative to expected operations under the CCR and CPP rules) and for projected reductions in the amount of CCR waste managed by impoundments. EPA performed the calculations for each of the 883 to 925 impoundments identified at steam electric power plants,
To estimate the number of release events that may be avoided as a result of the ELGs, EPA followed the same approach used by EPA for its RIA for the CCR rule. The approach relies on estimated failure rates and capacity factors for two different types of releases (wall breach and other release) and two categories of impoundments (big and small). For the final steam electric ELG rule analysis, EPA used baseline release-rate assumptions that account for changes projected to result from implementation of the CCR rule. As detailed in Chapter 6 of the BCA Report, EPA calculated the expected costs of an impoundment release, including cleanup, natural resource damages (NRD),
Using the approach above, EPA estimates the annualized benefits of the final rule are $95.6 million to $102.9 million using a three percent discount rate, and $77.7 million to $83.7 million using a seven percent discount rate.
The final rule may enhance the ability of steam electric power plants to market coal combustion byproducts for beneficial use by converting from wet to dry handling of fly ash, bottom ash and FGD waste. In particular, EPA evaluated the potential benefits from the increased marketability of fly ash as a substitute for Portland cement in concrete production and fly and bottom ashes as substitutes for sand and gravel in fill applications. Based on the change in the quantity of CCRs handled dry and state-level demand for beneficial use applications of CCRs, EPA calculated avoided disposal costs and life-cycle benefits from avoiding the production of virgin materials. Chapter 10 of the BCA Report details the methodology.
EPA estimates the annualized benefits of the final rule at $30.8 million using a three percent discount rate, and $31.1 million using a seven percent discount rate.
EPA expects the final rule to affect air pollution through three main mechanisms: (1) Additional auxiliary electricity use by steam electric power
EPA estimated the human health and other benefits resulting from net changes in air emissions of three pollutants: NO
EPA used average benefit-per-ton estimates to value benefits of changes in NO
Chapter 7 of the BCA Report provides the details of this analysis. As shown in Table XIV-3, EPA estimates that the final rule will provide human health benefits valued at $144.7 million using a three percent discount rate, and $108.8 million using a seven percent discount rate. The rule is expected to provide air-related benefits from changes in CO
Steam electric power plants use water for handling waste (
EPA estimated the benefits of reduced ground water withdrawals based on avoided costs of ground water supply. For each relevant plant, EPA multiplied the reduction in ground water withdrawal (in gallons per year) by water costs of about $1,231 per acre-foot. Chapter 8 of the BCA Report provides the details of this analysis. EPA estimates the annualized benefits of reduced ground water withdrawals are less than $0.1 million annually. Due to data limitations, EPA was not able to monetize the benefits from reduced surface water withdrawals. Chapter 8 of the BCA Report provides additional detail on benefits from reducing surface water withdrawals.
Using the analysis approach described above, EPA estimates annual total benefits of the final rule for the five monetized categories at approximately $450.6 million to $565.6 million (at a three percent discount rate and $387.3 million to $478.4 million at a seven percent discount rate) (Table XIV-4).
The monetized benefits of this final rule do not account for all benefits because, as described above, EPA is unable to monetize some categories. Examples of benefit categories not reflected in these estimates include other cancer and non-cancer health benefits, reduced cost of drinking water treatment, avoided ground water contamination corrective action costs, reduced vulnerability to drought, and reduced aquatic species mortality from reduced surface water withdrawal. The BCA Report discusses these benefits qualitatively, indicating their potential magnitude where possible.
EPA often uses cost-effectiveness analysis in the development and revision of ELGs to evaluate the relative efficiency of alternative regulatory options in removing toxic pollutants from effluent discharges to the nation's waters. Although not required by the CWA, and not a determining factor for establishing BAT and PSES, cost-effectiveness analysis can be a useful tool for describing regulatory options that address toxic pollutants.
The cost-effectiveness of a regulatory option is defined as the incremental annual cost (in 1981 constant dollars to facilitate comparison to ELGs for other industrial categories promulgated over different years) per incremental toxic-weighted pollutant removals for that option. This definition includes the following concepts:
The result of the cost-effectiveness calculation represents the unit cost (in constant 1981 dollars) of removing the next pound-equivalent of pollutants. EPA calculates cost-effectiveness separately for direct and indirect dischargers. EPA notes that only three steam electric power plants are estimated to incur costs associated with the final PSES requirements, as compared to 130 plants estimated to incur costs associated with the final BAT requirements.
Appendix F of the RIA details the analysis.
Collectively, the final BAT requirements have a cost-effectiveness ratio of $134/lb-eq ($1981). This cost-effectiveness ratio is well within the range of cost-effectiveness ratios for BAT requirements in other industries. A review of approximately 25 of the most recently promulgated or revised BAT limitations shows BAT cost-effectiveness ranging from less than $1/lb-eq (Inorganic Chemicals) to $404/lb-eq (Electrical and Electronic Components), in 1981 dollars.
Collectively, the final PSES requirements have a cost effectiveness of $1,228/lb-eq ($1981). This ratio is higher than the cost-effectiveness for PSES of other industries, which range from less than $1/lb-eq (Inorganic Chemicals) to $380/lb-eq (Transportation Equipment Cleaning), in
Collectively, cost-effectiveness for the entire rule (BAT and PSES) is $136/lb-eq ($1981).
For the purposes of calculating pollutant loadings under this action, EPA's analysis first handled non-detect values in the reported data by replacing them with a value of one-half of the detection level for the observation that yielded the non-detect. This methodology is standard procedure for the ELG program as well as Clean Water Act assessment and permitting, Safe Drinking Water Act monitoring, and Resource Conservation and Recovery Act and Superfund programs; and this approach is consistent with previous ELGs.
In their comments on the proposed rule, commenters raised the concern that for some pollutants the loadings calculations (particularly for bottom ash) were biased high as a result of high non-detected values in the reported data. These high non-detected values were the result of not using sufficiently sensitive methods. The view was expressed that, should the non-detects fall significantly outside of the range of detected values, assigning them one half of the detection level would not be sufficient to accurately represent pollutant loadings and the associated cost-effectiveness of the rule.
To assess this concern and provide further transparency for this rulemaking, EPA also implemented a second method of treating non-detects where all attributed non-detects (
The requirements in this rule apply to discharges from steam electric power plants through incorporation into NPDES permits issued by the EPA or authorized states under Section 402 of the Act and through local pretreatment programs under Section 307 of the Act. Permits or control mechanisms issued after this rule's effective date must incorporate the ELGs, as applicable. Also, under CWA section 510, states can require effluent limitations under state law as long as they are no less stringent than the requirements of this rule. Finally, in addition to requiring application of the technology-based ELGs in this rule, CWA section 301(b)(1)(C) requires the permitting authority to impose more stringent effluent limitations, as necessary, to meet applicable water quality standards.
The direct discharge limitations in this rule apply only when implemented in an NPDES permit issued to a discharger after the effective date of this rule. Under the CWA, the permitting authority must incorporate these ELGs into NPDES permits as a floor or a minimum level of control. While the rule is effective on its effective date (see
For combustion residual leachate, and for certain wastestreams (FGD wastewater, fly ash transport water, bottom ash transport water, FGMC wastewater, and gasification wastewater) at oil-fired generating units and small generating units (50 MW or less), the final BAT limitations apply on the date that a permit is issued to a discharger, following the effective date of this rule. The rule does not build in an implementation period for meeting these limitations, as the BAT limitation on TSS is equal to the previously promulgated BPT limitation on TSS.
Pretreatment standards are self-implementing, meaning they apply directly, without the need for a permit. In this rule, the pretreatment standards for existing sources must be met by November 1, 2018.
The requirements for new source direct and indirect discharges (NSPS and PSNS) provide no extended implementation period. NSPS apply when any NPDES permit is issued to a new source direct discharger, following the effective date of this rule; PSNS apply to any new source discharging to a POTW, as of the effective date of the final rule.
Regardless of when a plant's NPDES permit is ready for renewal, the plant
In cases where a plant's final NPDES permit will be issued after the effective date of the final ELGs, but before November 1, 2018, the permitting authority should apply limitations based on the previously promulgated BPT limitations or the plant's other applicable permit limitations until at least November 1, 2018. The permitting authority should also determine what date represents the soonest date, beginning November 1, 2018, that the plant can meet the final BAT limitations in this rule. The permit should require compliance with the final BAT limitations by that date, making clear that in no case shall the limitations apply later than December 31, 2023. Then, for permits that might be administratively continued, the final date will apply, even if that date is at the end of the implementation period. For permits that are issued on or after November 1, 2018, the permitting authority should determine the earliest possible date that the plant can meet the limitations in this rule (but in no case later than December 31, 2023), and apply the final limitations as of that date (BPT limitations or the plant's other applicable permit limitations would apply until such date).
As specified by the rule, the “as soon as possible” date determined by the permitting authority is November 1, 2018, unless the permitting authority determines another date after receiving information submitted by the discharger.
(a) Time to expeditiously plan (including to raise capital), design, procure, and install equipment to comply with the requirements of the final rule;
(b) Changes being made or planned at the plant in response to greenhouse gas regulations for new or existing fossil fuel-fired power plants under the Clean Air Act, as well as regulations for the disposal of coal combustion residuals under subtitle D of the Resource Conservation and Recovery Act;
(c) For FGD wastewater requirements only, an initial commissioning period to optimize the installed equipment; and
(d) Other factors as appropriate.
With respect to the first factor, the permitting authority should evaluate what operational changes are expected at the plant to meet the new BAT limitations for each wastestream, including the types of new treatment technologies that the plant plans to install, process changes anticipated, and the timeframe estimated to plan, design, procure, and install any relevant technologies. As specified in the second factor, the permitting authority must also consider scheduling for installation of equipment, which includes a consideration of plant changes planned or being made to comply with certain other key rules that affect the steam electric power generating industry. As specified in the third factor, for the FGD wastewater requirements only, the permitting authority must consider whether it is appropriate to allow more time for implementation, in addition to the three years before implementation of the rule begins on November 1, 2018, in order to ensure that the plant has appropriate time to optimize any relevant technologies. EPA's record demonstrates that plants installing the FGD technology basis spent several months optimizing its operation (initial commissioning period). Without allowing additional time for optimization, the plant would likely not be able to meet the limitations because they are based on the operation of optimized systems. See TDD Section 14 for additional discussion and examples regarding implementation of the final ELGs into NPDES permits.
The “as soon as possible” date determined by the permitting authority may or may not be different for each wastestream. EPA recommends that the permitting authority provide a well-documented justification of how it determined the “as soon as possible” date in the fact sheet or administrative record for the permit. If the permitting authority determines a date later than November 1, 2018, the justification should explain why allowing additional time to meet the limitations is appropriate, and why the discharger cannot meet the final effluent limitations as of November 1, 2018. In cases where the plant is already operating the BAT technology basis for a specific wastestream (
Where a discharger chooses to participate in the voluntary incentives program and be subject to effluent limitations for FGD wastewater based on evaporation, the permitting authority must allow the plant up to December 31, 2023, to meet those limitations; again, the permit must make clear that the plant must meet the final limitations by December 31, 2023.
In 1982, EPA promulgated NSPS/PSNS for certain discharges from new sources. Those sources that were subject to the 1982 NSPS/PSNS will continue to be subject to such standards under this final rule. In addition, sources to which the 1982 NSPS/PSNS apply are also subject to the final BAT/PSES requirements in this rule because they will be existing sources with respect to such new requirements. See 40 CFR 423.15(a) and 40 CFR 423.17(a).
For purposes of the BAT limitations in this rule, legacy wastewater is FGD wastewater, fly ash transport water, bottom ash transport water, FGMC wastewater, and gasification wastewater generated prior to the date established by the permitting authority that is as soon as possible beginning November 1, 2018, but no later than December 31, 2023 (see Section VIII.C.7 and Section VIII.C.8).
Most steam electric power plants combine various wastewaters (
Because EPA anticipates that permitting authorities will apply concentration-based limitations or standards, rather than mass-based limitations or standards, in NPDES permits for steam electric power plants, proper application of the building block approach or CWF is necessary to ensure that the reduced pollutant concentrations observed in a combined discharge reflect proper treatment and control strategies rather than dilution. Where a regulated wastestream is combined with a well-known dilution flow, such as cooling water, uncontaminated stormwater, or cooling tower blowdown, the concentration-based limitation for the regulated wastestream is reduced by multiplying it by a factor.
In all cases where the permitting authority is applying the building block approach or CWF, except where a regulated wastestream is mixed with a dilution wastestream, the permitting authority must also determine the flow rate for use in the building block approach or CWF. EPA strongly recommends that the permitting authority calculate the flow rate based on representative flow rates for each wastestream.
EPA recommends that, where a steam electric power plant chooses to combine two or more wastestreams that would call for the use of the building block approach or CWF to determine the appropriate limitations or standards for the combined wastestream, the plant should be responsible for providing sufficient data that reflect representative samples of each of the individual wastestreams that make up the combined wastestream. EPA strongly recommends that the representative samples reflect a study of each of the applicable wastestreams that covers the full range of variability in concentration and flow for each wastestream.
EPA anticipates that proper application of the building block approach or CWF will result in combined wastestream limitations and standards that will enable steam electric power plants to combine certain wastestreams, while also ensuring that the plant is actually treating its wastewater as intended by the Act and this rule, rather than simply diluting it. EPA's record demonstrates, however, that combined wastestream limitations and standards at the point of discharge, derived using the building block approach or CWF, may be impractical or infeasible for some combined wastestreams because the resulting limitation or standard for
By reserving BAT and NSPS for non-chemical metal cleaning wastes in this final rule, the permitting authority must continue to establish such requirements based on BPJ for any steam electric power plant discharging this wastestream. As explained in Section VIII.I, in permitting this wastestream, some permitting authorities have classified it as non-chemical metal cleaning wastes (a subset of metal cleaning wastes), while others have classified it as a low volume waste source; NPDES permit limitations for this wastestream thus reflect that classification. In making future BPJ BAT determinations, EPA recommends that the permitting authority examine the historical permitting record for the particular plant to determine how discharges of non-chemical metal cleaning wastes have been permitted in the past. Using historical information and its best professional judgment, the permitting authority could determine that the BPJ BAT limitations should be set equal to existing BPT limitations or it could determine that more stringent BPJ BAT limitations should apply. In making a BPJ determination for new sources, EPA recommends that the permitting authority consider whether it would be appropriate to base standards on BPT limitations for metal cleaning wastes or on a technology that achieves greater pollutant reductions.
A “bypass” is an intentional diversion of wastestreams from any portion of a treatment facility. An “upset” is an exceptional incident in which there is unintentional and temporary
The CWA requires application of effluent limitations or pretreatment standards established pursuant to CWA section 301 to all direct and indirect dischargers. The statute, however, provides for the modification of these national requirements in a limited number of circumstances. The Agency has established administrative mechanisms to provide an opportunity for relief from the application of the national effluent limitations guidelines for categories of existing sources for toxic, conventional, and nonconventional pollutants.
EPA can develop, with the concurrence of the state, effluent limitations or standards different from the otherwise applicable requirements for an individual existing discharger if that discharger is fundamentally different with respect to factors considered in establishing the effluent limitations guidelines or standards. Such a modification is known as a Fundamentally Different Factors (FDF) variance.
EPA, in its initial implementation of the effluent guidelines program, provided for the FDF modifications in regulations, which were variances from the BPT effluent limitations, BAT limitations for toxic and nonconventional pollutants, and BCT limitations for conventional pollutants for direct dischargers. FDF variances for toxic pollutants were challenged judicially and ultimately sustained by the Supreme Court in
Subsequently, in the Water Quality Act of 1987, Congress added a new section to the CWA, section 301(n). This provision explicitly authorizes modifications of the otherwise applicable BAT effluent limitations, if a discharger is fundamentally different with respect to the factors specified in CWA section 304 or 403 (other than costs) from those considered by EPA in establishing the effluent limitations and standards. CWA section 301(n) also defined the conditions under which EPA can establish alternative requirements. Under Section 301(n), an application for approval of a FDF variance must be based solely on (1) information submitted during rulemaking raising the factors that are fundamentally different or (2) information the applicant did not have an opportunity to submit. The alternate limitation must be no less stringent than justified by the difference and must not result in markedly more adverse non-water quality environmental impacts than the national limitation.
EPA regulations at 40 CFR part 125, subpart D, authorizing the Regional Administrators to establish alternative limitations, further detail the substantive criteria used to evaluate FDF variance requests for direct dischargers. Thus, 40 CFR 125.31(d) identifies six factors (
Section 301(c) of the CWA authorizes a variance from the otherwise applicable BAT effluent guidelines for nonconventional pollutants due to economic factors. See also CWA section 301(l). The request for a variance from effluent limitations developed from BAT guidelines must normally be filed by the discharger during the public notice period for the draft permit. Other filing periods can apply, as specified in 40 CFR 122.21(m)(2). Specific guidance for this type of variance is provided in “Draft Guidance for Application and Review of Section 301(c) Variance Requests,” dated August 21, 1984, available on EPA's Web site at
Section 301(g) of the CWA authorizes a variance from BAT effluent guidelines for certain nonconventional pollutants (ammonia, chlorine, color, iron, and total phenols) due to localized environmental factors. As this final rule does not establish limitations or standards for any of these pollutants, this variance is not applicable to this particular rule.
Section 307(b)(1) of the CWA establishes a discretionary program for POTWs to grant “removal credits” to their indirect dischargers. Removal credits are a regulatory mechanism by which industrial users can discharge a pollutant in quantities that exceed what would otherwise be allowed under an applicable categorical pretreatment standard because it has been determined that the POTW to which the industrial user discharges consistently treats the pollutant. EPA has promulgated removal credit regulations as part of its pretreatment regulations. See 40 CFR 403.7. These regulations provide that a POTW can give removal credits if prescribed requirements are met. The POTW must apply to and receive authorization from the Approval Authority. To obtain authorization, the POTW must demonstrate consistent removal of the pollutant for which approval authority is sought. Furthermore, the POTW must have an approved pretreatment program. Finally, the POTW must demonstrate that granting removal credits will not cause the POTW to violate applicable federal, state, or local sewage sludge requirements. 40 CFR 403.7(a)(3).
The U.S. Court of Appeals for the Third Circuit interpreted the CWA as requiring EPA to promulgate the comprehensive sewage sludge regulations pursuant to CWA section 405(d)(2)(A)(ii) before any removal credits could be authorized.
The part 503 sewage sludge regulations allow four options for sewage sludge disposal: (1) Land application for beneficial use, (2) placement on a surface disposal unit, (3) firing in a sewage sludge incinerator, and (4) disposal in a landfill which complies with the municipal solid waste landfill criteria in 40 CFR part 258. Because pollutants in sewage sludge are regulated differently depending upon the use or disposal method selected, under EPA's pretreatment regulations the availability of a removal credit for a particular pollutant is linked to the POTW's method of using or disposing of its sewage sludge. The regulations provide that removal credits can be potentially available for the following situations:
(1) If a POTW applies its sewage sludge to the land for beneficial uses, disposes of it in a surface disposal unit, or incinerates it in a sewage sludge incinerator, removal credits can be available for the pollutants for which EPA has established limits in 40 CFR part 503. EPA has set ceiling limitations for nine metals in sludge that is land applied, three metals in sludge that is placed on a surface disposal unit, and seven metals and 57 organic pollutants in sludge that is incinerated in a sewage sludge incinerator. 40 CFR 403.7(a)(3)(iv)(A).
(2) Additional removal credits can be available for sewage sludge that is land applied, placed in a surface disposal unit, or incinerated in a sewage sludge incinerator, so long as the concentration of these pollutants in sludge do not exceed concentration levels established in 40 CFR part 403, appendix G, Table II. For sewage sludge that is land applied, removal credits can be available for an additional two metals and 14 organic pollutants. For sewage sludge that is placed on a surface disposal unit, removal credits can be available for an additional seven metals and 13 organic pollutants. For sewage sludge that is incinerated in a sewage sludge incinerator, removal credits can be available for three other metals 40 CFR 403.7(a)(3)(iv)(B).
(3) When a POTW disposes of its sewage sludge in a municipal solid waste landfill that meets the criteria of 40 CFR part 258, removal credits can be available for any pollutant in the POTW's sewage sludge. 40 CFR 403.7(a)(3)(iv)(C).
Depending on site-specific conditions and applicable state water quality standards, it may be appropriate for permitting authorities to establish water quality-based effluent limitations on bromide,
Bromides (a component of TDS) are not directly controlled by the numeric effluent limitations and standards for existing sources under this final rule
Bromide discharges from coal-fired steam electric power plants can occur because bromide is naturally found in coal and is released as particulates when the coal is burned, or by the addition of bromide compounds to the coal prior to burning, or to the flue gas scrubbing process, to reduce the amount of mercury air pollution that is also created when coal is burned.
While bromide itself is not thought to be toxic at levels present in the environment, its reaction with other constituents in water may be a cause for concern now and into the future. The bromide ion in water can form brominated DBPs when drinking water plants treat the incoming source water using certain disinfection processes including chlorination and ozonation. Bromide can react with the ozone, chlorine, or chlorine-based disinfectants to form bromate and brominated and mixed chloro-bromo DBPs, such as trihalomethanes (THMs) or haloacetic acids (HAAs) (see DCN SE01920). Studies indicate that exposure to THMs and other DBPs from chlorinated water is associated with human bladder cancer (see DCN SE01981 and DCN SE01983). EPA has established the following MCLs for DBPs:
• 0.010 mg/L for bromate due to increased cancer risk from long-term exposure;
• 0.060 for HAAs due to increased cancer risk from long-term exposure; and
• 0.080 mg/L for TTHMs due to increased cancer risk and liver, kidney or central nervous system problems from long-term exposure (see DCN SE01909).
The record indicates that steam electric power plant FGD wastewater discharges occur near more than 100 public drinking water intakes on rivers and other waterbodies, and there is evidence that these discharges are already having adverse effects on the quality of drinking water sources. A 2014 study by McTigue et. al. identified four drinking water treatment plants that experienced increased levels of bromide in their source water, and corresponding increases in the formation of brominated DBPs, after the installation of wet FGD scrubbers at upstream steam electric power plants (see DCN SE04503).
Drinking water utilities are concerned as well, noting that the bromide concentrations have made it increasingly difficult for them to meet SDWA requirements for total trihalomethanes (TTHMs) (see DCN SE01949). And, bromide loadings into surface waters from coal-fired steam electric power plants could potentially increase in the future as more plant operators use bromide addition to improve the control of mercury emissions. The American Water Works Association requested that EPA “instruct NPDES permit writers to adequately consider downstream drinking water supplies in establishing permit requirements for power plant discharges” and take other steps to limit adverse consequences for downstream drinking water treatment plants. EPA agrees that permitting authorities should carefully consider whether water quality-based effluent limitations on bromide or TDS would be appropriate for FGD wastewater discharges from steam electric power plants upstream of drinking water intakes.
EPA regulations at 40 CFR 122.44(d)(1) require that each NPDES permit shall include any requirements, in addition to or more stringent than effluent limitations guidelines or standards promulgated pursuant to sections 301, 304, 306, 307, 318 and 405 of the CWA, necessary to achieve water quality standards established under section 303 of the CWA, including state narrative criteria for water quality. Furthermore, those same regulations require that limitations must control all pollutants, or pollutant parameters (either conventional, nonconventional, or toxic pollutants) which the Director determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any state water quality standard, including state narrative criteria for water quality.
Where the DBP problem described above may be present, water quality-based effluent limitations for steam electric power plant discharges may be required under the regulations at 40 CFR 122.44(d)(1), where necessary to meet either numeric criteria (
To translate state narrative water quality criteria and inform the development of a water quality-based limitation for bromide, it may be appropriate for permitting authorities to use EPA's established MCLs for DBPs in drinking water because the presence of bromides in drinking water can result in exceedances of drinking water MCLs as a result of interactions during drinking water treatment and disinfection processes. The limitation would be developed for the purpose of attaining and maintaining the state's applicable narrative water quality criterion or criteria and protecting the state's designated use(s), including the protection of human health. See 40 CFR 122.44(d)(1)(vi).
For the reasons described above, during development of the NPDES permit for the steam electric power plant, the permitting authority should provide notification to any downstream drinking water treatment plants of the discharge of bromide. EPA recommends that the permitting authority collaborate with drinking water utilities and their regulators to determine what concentration of bromides at the PWS intake is needed to ensure that levels of bromate and DPBs do not exceed applicable MCLs. The maximum level of bromide in source waters at the intake that does not result in an exceedance of the MCL for DBPs is the numeric interpretation of the narrative criterion for protection of human health and may vary depending on the treatment processes employed at the drinking water treatment facility. The permitting authority would then determine the level of bromide that may be discharged from the steam electric power plant, taking into account other sources of bromide that may occur, such that the level of bromide downstream at the intake to the drinking water utility is below a level that would result in an exceedances of the applicable MCLs for DBPs. In addition, applicants for NPDES permits must, as part of their permit application, indicate whether they know or have reason to believe that conventional and/or nonconventional pollutants listed in Table IV of Appendix D to 40 CFR part 122, (which includes bromide), are discharged from each outfall. For every pollutant in Table IV of Appendix D discharged which is not limited in an applicable effluent limitations guideline, the applicant must either report quantitative data or briefly describe the reasons the pollutant is expected to be discharged as set forth in 40 CFR 122.2l(g)(7)(vi)(A), made applicable to the States at 40 CFR 123.25(a)(4).
In addition to requiring the permit applicant to provide a complete application, including proper wastewater characterization, when issuing the permit, the permitting authority can incorporate appropriate monitoring and reporting requirements, as authorized under section 402(a)(2), 33 U.S.C. 1342(a)(2), and implementing regulations at 40 CFR 122.48, 122.44(i), 122.43 and 122.41(1)(4). These requirements apply to all dischargers and include plants that have identified the presence of bromide in effluent in significant quantities and that are in proximity to downstream water treatment plants.
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. EPA prepared an analysis of the potential costs and benefits associated with this action. This analysis is contained in Chapter 13 of the BCA Report, available in the docket.
Table XVII-1 (drawn from Table 13-1 of the BCA Report) provides the results of the benefit-cost analysis with both costs and benefits annualized over 24 years and discounted using a three percent discount rate.
OMB has previously approved the information collection requirements contained in the existing regulations 40 CFR part 423 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
EPA estimated small changes in monitoring costs at steam electric power plants for metals in the final rule; EPA accounted for these costs as part of its analysis of the economic impacts. Plants, however, will also realize certain savings by no longer monitoring effluent that would cease to exist under the final rule. The net changes in monitoring and reporting are expected to be minimal, and EPA determined that the existing burden estimates appropriately reflect any final rule burden associated with monitoring.
Based on the information in its record, EPA does not expect the final rule to increase costs to permitting authorities. The rule will not change permit application requirements or the associated review; it will not increase the number of permits issued to steam electric power plants; nor does it increase the efforts involved in developing or reviewing such permits. In fact, the final rule will reduce the burden to permitting authorities. In the absence of nationally applicable BAT requirements, as appropriate, permitting authorities must establish technology-based effluent limitations using BPJ to establish site-specific requirements based on information submitted by the discharger. Permitting authorities that establish technology-based effluent limitations on a BPJ basis often spend significant time, effort, and resources doing so, and dischargers may expend significant resources providing associated data and information. Establishing nationally applicable BAT requirements that eliminate the need to develop BPJ-based limitations makes permitting easier and less costly in this respect.
As explained in Section XVI.A, under this rule, after the permitting authority receives information from the discharger, it must determine, on a facility-specific basis, what date is “as soon as possible” during the period beginning November 1, 2018, and ending December 31, 2023. This one-time burden to the discharger and the permitting authority, however, is no more excessive than the existing burden associated with developing technology-based effluent limitations on a BPJ basis; in fact, it is very likely less burdensome. Nevertheless, EPA conservatively estimated no net change (increase or decrease) in the cost burden to federal or state governments or dischargers associated with this final rule.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The basis for this finding is documented in Chapter 8 of the RIA included in the docket and summarized below. EPA estimates that 243 to 507 entities own steam electric power plants to which the ELGs apply, of which 110 to 191 entities are small (see Table XVII-2).
To assess whether small entities' compliance costs might constitute a significant impact, EPA summed annualized compliance costs for the steam electric power plants determined to be owned by a given small entity and calculated these costs as a percentage of entity revenue (cost-to-revenue test). EPA compared the resulting percentages to impact criteria of one percent and three percent of revenue. Small entities estimated to incur compliance costs exceeding one or more of the one percent and three percent impact thresholds were identified as potentially incurring a significant impact.
EPA notes that setting the BAT limitations for FGD wastewater, fly ash transport water, bottom ash transport water, FGMC wastewater, and gasification wastewater equal to the BPT limitations on TSS in fly ash transport water, bottom ash transport water, and low volume waste sources at existing generating units with a total nameplate generating capacity of 50 MW or less (as discussed in Section VIII.C.12) reduces the potential impacts of the rule on small entities and municipalities. The rulemaking record indicates that establishing a size threshold of 50 MW or less preferentially minimizes some of the expected economic impacts on municipalities and small entities.
Table XVII-3 presents the estimated numbers of small entities incurring costs exceeding one percent and three percent of revenue, by ownership type.
As reported in Table XVII-3, EPA estimates that six small entities owning steam electric power plants (one cooperative, one nonutility, and four municipalities) will incur costs exceeding one percent of revenue as a result of the final rule, and one small municipality owning steam electric power plants will incur costs exceeding three percent of revenue. The numbers of small entities incurring costs exceeding either the one or three percent of revenue impact threshold are small in the absolute and represent small percentages of the total estimated number of small entities, which supports EPA's finding of no significant impact on a substantial number of small entities (No SISNOSE).
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, requires federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. This action contains a federal mandate that may result in expenditures of $100 million or more (annually, adjusted for inflation) for state, local, and tribal governments, in the aggregate, or the private sector in any one year ($141 million in 2013). Accordingly, EPA prepared a written statement required under section 202 of UMRA. The statement is included in the docket for this action (see Chapter 9 in the RIA report) and briefly summarized here.
Consistent with the intergovernmental consultation provisions of UMRA section 204, EPA consulted with governmental entities affected by this rule. EPA described the government-to-government dialogue leading to the proposed rule in its preamble to the proposed rulemaking. EPA received comments from state and local government representatives in response to the proposed rule and considered this input in developing the final rule.
Consistent with UMRA section 205, EPA identified and analyzed a reasonable number of regulatory alternatives to determine BAT/BADCT. Section VIII of this preamble describes the options.
This action is not subject to the requirements of UMRA section 203 because it contains no regulatory requirements that might significantly or uniquely affect small governments. For its assessment of the impact of compliance requirements on small governments (governments for populations of less than 50,000), EPA compared total costs and costs per plant estimated to be incurred by small governments with the costs estimated to be incurred by large governments. EPA also compared costs for small government-owned plants with those of non-government-owned facilities. The Agency evaluated both the average and maximum annualized cost per plant. Chapter 9 of the RIA report provides details of these analyses. In all of these comparisons, both for the cost totals and, in particular, for the average and maximum cost per plant, the costs for small government-owned facilities were less than those for large government-owned facilities and for small non-government-owned facilities. On this basis, EPA concluded that the final rule does not significantly or uniquely affect small governments.
Under Executive Order (E.O.) 13132, EPA may not issue an action that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments or EPA consults with state and local officials early in the process of developing the action.
This action has federalism implications because it may impose substantial direct compliance costs on state or local governments, and the federal government will not provide the funds necessary to pay those costs.
EPA anticipates that this final rule will not impose incremental administrative burden on states from issuing, reviewing, and overseeing compliance with discharge requirements. However, EPA has identified 168 steam electric power plants owned by state or local government entities, out of which 16 plants are estimated to incur costs to meet the limitations. EPA estimates that the maximum aggregate compliance cost in any one year to governments (excluding the federal government) is $171.4 million (see Chapter 9 of the RIA report for details). Based on this information, this action may impose substantial direct compliance costs on state or local governments. Accordingly, EPA provides the following federalism summary impact statement as required by section 6(b) of E.O. 13132.
EPA consulted with elected state and local officials or their representative national organizations early in the process of developing the rule to ensure their meaningful and timely input into its development. The preamble to the proposed rule described these consultations, which included a briefing on October 11, 2011, attended by representatives from the National League of Cities, the National Conference of State Legislatures, the National Association of Counties, the National Association of Towns and Townships, the U.S. Conference of Mayors, the Council of State Governments, the County Executives of America, and the Environmental Council of the States. Policy and professional groups such as the National Rural Electric Cooperative Association, America's Clean Water Agencies, and the American Public Power Association also participated in the briefing, as did environmental and natural resource policy staff representing nine state agencies and approximately 25 local governments and/or utilities. The participants asked questions and raised comments during the meeting. In response to the Agency's request for pre-proposal written submittals within eight weeks of the briefing, EPA received separate written submittals regarding the technology options, pollutant removal effectiveness, costs of specific technologies and overall costs, impacts on small generating units and on small governments, among others. EPA carefully considered these comments in developing the proposed rule.
EPA received comment on the proposed ELGs from 31 state and local officials or their representatives. Some state and local officials expressed concerns EPA had underestimated the costs and overstated the pollutant removals of the technology options. They stated that the ELGs would impose significant costs on small entities, and would result in electricity rate increases that are unaffordable for households. They also stated that small municipal systems typically operate smaller units with disproportionally greater compliance costs as compared to larger units. Commenters also expressed concern about coordination of the CCR and ELG rules, the potential premature retirement of coal-fired units with limited remaining life, and potential downtime during retrofits. Finally, some commenters asked that EPA allow more time to phase-in the requirements. Other state and local officials supported revisions of the ELGs and generally opposed reliance on BPJ as a basis for establishing limitations for FGD wastewater. EPA considered these comments in developing the final rule. A list of the state and local government commenters has been provided to OMB and has been placed in the docket for this rulemaking. In addition, the detailed response to comments from these entities is contained in EPA's response to comments document on this final rulemaking, which has also been placed in the docket for this rulemaking.
As explained in Section VIII, the final rule establishes different BAT/PSES requirements for oil-fired generating units and units of 50 MW or less. These different requirements alleviate some of the concerns raised by state and local government representatives by reducing the number of government entities incurring costs to meet the ELG requirements. The implementation schedule described in Section XVI gives time to facilities to make changes to their operations to meet the final effluent limitations. Moreover, the rule does not rely on BPJ determinations for establishment of FGD wastewater limitations or standards. Finally, as explained in Section IX, EPA's analysis demonstrates that the requirements are economically achievable for the steam electric industry as a whole, including plants owned by state or local government entities.
This action does not have tribal implications, as specified in E.O. 13175 (65 FR 67249, November 9, 2000). It will not have substantial direct effects on tribal governments, on the relationship between the federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in E.O. 13175. EPA's analyses show that tribal governments do not own any facility to which the ELGs apply. Thus, E.O. 13175 does not apply to this action.
Although E.O. 13175 does not apply to this action, EPA consulted with federally recognized tribal officials under EPA's Policy on Consultation and Coordination with Indian tribes early in the process of developing this rule to enable them to have meaningful and timely input into its development. EPA initiated consultation and coordination with federally recognized tribal governments in August 2011. EPA shared information about the steam electric effluent guidelines rulemaking in discussions with the National Tribal Caucus and the National Tribal Water Council. EPA continued this government-to-government dialogue by mailing a consultation notification letter to tribal leaders, and on March 28, 2012, held a tribal consultation conference call with tribal representatives about the rulemaking process and objectives, with a focus on identifying specific ways that the rulemaking may affect tribes. Representatives from one tribe provided input to the rule. EPA considered input from tribal representatives in developing this final rule.
This action is not subject to E.O. 13045 (62 FR 19885, April 23, 1997) because the EPA does not expect that 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 Chapter 3 of the BCA Report and summarized below.
As described in Section XIV.B.1, EPA assessed whether the final rule will benefit children by reducing health risk from exposure to steam electric pollutants from consumption of contaminated fish and improving recreational opportunities. The Agency was able to quantify two categories of benefits specific to children: (1) Avoided neurological damage to preschool age children from reduced exposure to lead and (2) avoided neurological damages from in utero exposure to mercury.
This analysis considered several measures of children's health benefits associated with lead exposure for children up to age six. Avoided neurological and cognitive damages were expressed as changes in three metrics: (1) Overall IQ levels; (2) the incidence of low IQ scores (<70); and (3) the incidence of levels of lead in the blood above 20 mg/dL.
EPA estimated the IQ-related benefits associated with reduced in utero mercury exposure from maternal fish consumption in exposed populations. Among approximately 418,953 babies born per year who are potentially exposed to discharges of mercury from steam electric power plants, the final rule reduces total IQ point losses over the period of 2019 through 2042 by about 7,219 points. The monetary benefits associated with the avoided IQ point losses are $3.5 million per year (mean estimate, at three percent discount rate).
EPA's analysis also shows annualized benefits to children from reduced lead discharges of approximately $1.0 million (at three percent discount rate).
EPA identified additional benefits to children, such as reduced exposure to
This action is not a “significant energy action,” as defined by E.O. 13211 (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
The Agency analyzed the potential energy effects of these ELGs. The potentially significant effects of this rule on energy supply, distribution, or use concern the electric power sector. EPA found that the final rule will not cause effects in the electric power sector that constitute a significant adverse effect under E.O. 13211. Namely, the Agency found that this rule does not reduce electricity production in excess of 1 billion kilowatt hours per year or in excess of 500 megawatts of installed capacity, and therefore does not constitute a significant regulatory action under E.O. 13211.
For more detail on the potential energy effects of this final rule, see Chapter 10 in the RIA report.
This rulemaking does not involve technical standards.
E.O. 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the U.S.
EPA determined that 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. The results of this evaluation are contained in Chapter 14 of the BCA Report, available in the docket.
To meet the objectives of E.O. 12898, EPA examined whether the rule creates potential environmental justice concerns in the areas affected by steam electric power plant discharges. The Agency analyzed the demographic characteristics of the populations who live in proximity to steam electric power plants and who may be exposed to pollutants in steam electric power plant discharges (populations who consume recreationally caught fish from affected reaches) to determine whether minority and or low-income populations are subject to disproportionally high environmental impacts.
EPA conducted the analysis in two ways. First, EPA compared demographic data for populations living in proximity to steam electric power plants to demographic characteristics at the state and national levels. This analysis focuses on the spatial distribution of minority and low-income groups to determine whether these groups are more or less represented in the populations that are expected to benefit from the final rule, based on their proximity to steam electric power plants. This analysis shows that approximately 450,000 people reside within one mile of a steam electric power plant currently discharging to surface waters and 2.7 million people reside within three miles. A greater fraction of the populations living in such proximity to the plants has income below the poverty threshold (16.4 and 15.3 percent, respectively for populations within one and three miles) than the national average (13.9 percent).
Second, EPA conducted analyses of populations exposed to steam electric power plant discharges through consumption of recreationally caught fish by estimating exposure and health effects by demographic cohort. Where possible, EPA used analytic assumptions specific to the demographic cohorts—
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).
The following acronyms and abbreviations are used in this preamble.
Environmental protection, Electric power generation, Power plants, Waste treatment and disposal, Water pollution control.
Therefore, 40 CFR Chapter I is amended as follows:
Secs. 101; 301; 304(b), (c), (e), and (g); 306; 307; 308 and 501, Clean Water Act (Federal Water Pollution Control Act Amendments of 1972, as amended; 33 U.S.C. 1251; 1311; 1314(b), (c), (e), and (g); 1316; 1317; 1318 and 1361).
The provisions of this part apply to discharges resulting from the operation of a generating unit by an establishment whose generation of electricity is the predominant source of revenue or principal reason for operation, and whose generation of electricity results primarily from a process utilizing fossil-type fuel (coal, oil, or gas), fuel derived from fossil fuel (
The revisions and additions read as follows:
(b) The term low volume waste sources means, taken collectively as if from one source, wastewater from all sources except those for which specific limitations or standards are otherwise established in this part. Low volume waste sources include, but are not limited to, the following: Wastewaters from ion exchange water treatment systems, water treatment evaporator blowdown, laboratory and sampling streams, boiler blowdown, floor drains, cooling tower basin cleaning wastes, recirculating house service water systems, and wet scrubber air pollution control systems whose primary purpose is particulate removal. Sanitary wastes, air conditioning wastes, and wastewater from carbon capture or sequestration systems are not included in this definition.
(e) The term fly ash means the ash that is carried out of the furnace by a gas stream and collected by a capture device such as a mechanical precipitator, electrostatic precipitator, or fabric filter. Economizer ash is included in this definition when it is collected with fly ash. Ash is not included in this definition when it is collected in wet scrubber air pollution control systems whose primary purpose is particulate removal.
(f) The term bottom ash means the ash, including boiler slag, which settles in the furnace or is dislodged from furnace walls. Economizer ash is included in this definition when it is collected with bottom ash.
(n) The term flue gas desulfurization (FGD) wastewater means any wastewater generated specifically from the wet flue gas desulfurization scrubber system that comes into contact with the flue gas or the FGD solids, including but not limited to, the blowdown from the FGD scrubber system, overflow or underflow from the solids separation process, FGD solids wash water, and the filtrate from the solids dewatering process. Wastewater generated from cleaning the FGD scrubber, cleaning FGD solids separation equipment, cleaning FGD solids dewatering equipment, or that is collected in floor drains in the FGD process area is not considered FGD wastewater.
(o) The term flue gas mercury control wastewater means any wastewater generated from an air pollution control system installed or operated for the purpose of removing mercury from flue gas. This includes fly ash collection systems when the particulate control system follows sorbent injection or other controls to remove mercury from flue gas. FGD wastewater generated at plants using oxidizing agents to remove mercury in the FGD system and not in a separate FGMC system is not included in this definition.
(p) The term transport water means any wastewater that is used to convey fly ash, bottom ash, or economizer ash from the ash collection or storage equipment, or boiler, and has direct contact with the ash. Transport water does not include low volume, short duration discharges of wastewater from minor leaks (
(q) The term gasification wastewater means any wastewater generated at an integrated gasification combined cycle operation from the gasifier or the syngas cleaning, combustion, and cooling processes. Gasification wastewater includes, but is not limited to the following: Sour/grey water; CO
(r) The term combustion residual leachate means leachate from landfills or surface impoundments containing combustion residuals. Leachate is composed of liquid, including any suspended or dissolved constituents in the liquid, that has percolated through waste or other materials emplaced in a landfill, or that passes through the surface impoundment's containment structure (
(s) The term oil-fired unit means a generating unit that uses oil as the primary or secondary fuel source and does not use a gasification process or any coal or petroleum coke as a fuel source. This definition does not include units that use oil only for start up or flame-stabilization purposes.
(t) The phrase “as soon as possible” means November 1, 2018, unless the permitting authority establishes a later date, after receiving information from the discharger, which reflects a consideration of the following factors:
(1) Time to expeditiously plan (including to raise capital), design, procure, and install equipment to comply with the requirements of this part.
(2) Changes being made or planned at the plant in response to:
(i) New source performance standards for greenhouse gases from new fossil fuel-fired electric generating units, under sections 111, 301, 302, and 307(d)(1)(C) of the Clean Air Act, as amended, 42 U.S.C. 7411, 7601, 7602, 7607(d)(1)(C);
(ii) Emission guidelines for greenhouse gases from existing fossil fuel-fired electric generating units, under sections 111, 301, 302, and 307(d) of the Clean Air Act, as amended, 42 U.S.C. 7411, 7601, 7602, 7607(d); or
(iii) Regulations that address the disposal of coal combustion residuals as solid waste, under sections 1006(b), 1008(a), 2002(a), 3001, 4004, and 4005(a) of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. 6906(b), 6907(a), 6912(a), 6944, and 6945(a).
(3) For FGD wastewater requirements only, an initial commissioning period for the treatment system to optimize the installed equipment.
The revisions and addition read as follows:
(b) * * *
(11) The quantity of pollutants discharged in FGD wastewater, flue gas mercury control wastewater, combustion residual leachate, or gasification wastewater shall not exceed the quantity determined by multiplying the flow of the applicable wastewater times the concentration listed in the following table:
(12) At the permitting authority's discretion, the quantity of pollutant allowed to be discharged may be expressed as a concentration limitation instead of the mass-based limitations specified in paragraphs (b)(3) through (b)(7), and (b)(11), of this section. Concentration limitations shall be those concentrations specified in this section.
(13) In the event that wastestreams from various sources are combined for treatment or discharge, the quantity of each pollutant or pollutant property controlled in paragraphs (b)(1) through (b)(12) of this section attributable to each controlled waste source shall not exceed the specified limitations for that waste source.
The revisions and additions read as follows:
(g)(1)(i)
(ii) For FGD wastewater generated before the date determined by the permitting authority, as specified in paragraph (g)(1)(i), the quantity of pollutants discharged in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed for TSS in § 423.12(b)(11).
(2) For any electric generating unit with a total nameplate capacity of less than or equal to 50 megawatts or that is an oil-fired unit, the quantity of pollutants discharged in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed for TSS in § 423.12(b)(11).
(3)(i) For dischargers who voluntarily choose to meet the effluent limitations for FGD wastewater in this paragraph, the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in the table following this paragraph (g)(3)(i). Dischargers who choose to meet the effluent limitations for FGD wastewater in this paragraph must meet such limitations by December 31, 2023. These effluent limitations apply to the discharge of FGD wastewater generated on and after December 31, 2023.
(ii) For discharges of FGD wastewater generated before December 31, 2023, the quantity of pollutants discharged in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed for TSS in § 423.12(b)(11).
(h)(1)(i)
(ii) For discharges of fly ash transport water generated before the date determined by the permitting authority, as specified in paragraph (h)(1)(i) of this section, the quantity of pollutants discharged in fly ash transport water shall not exceed the quantity determined by multiplying the flow of fly ash transport water times the concentration listed for TSS in § 423.12(b)(4).
(2) For any electric generating unit with a total nameplate generating capacity of less than or equal to 50 megawatts or that is an oil-fired unit, the quantity of pollutants discharged in fly ash transport water shall not exceed the quantity determined by multiplying the flow of fly ash transport water times the concentration listed for TSS in § 423.12(b)(4).
(i)(1)(i)
(ii) For discharges of flue gas mercury control wastewater generated before the date determined by the permitting authority, as specified in paragraph (i)(1)(i) of this section, the quantity of pollutants discharged in flue gas mercury control wastewater shall not exceed the quantity determined by multiplying the flow of flue gas mercury control wastewater times the concentration for TSS listed in § 423.12(b)(11).
(2) For any electric generating unit with a total nameplate generating capacity of less than or equal to 50 megawatts or that is an oil-fired unit, the quantity of pollutants discharged in flue gas mercury control wastewater shall not exceed the quantity determined by multiplying the flow of flue gas mercury control wastewater times the concentration for TSS listed in § 423.12(b)(11).
(j)(1)(i)
(ii) For discharges of gasification wastewater generated before the date determined by the permitting authority, as specified in paragraph (j)(1)(i) of this section, the quantity of pollutants discharged in gasification wastewater shall not exceed the quantity determined by multiplying the flow of gasification wastewater times the concentration for TSS listed in § 423.12(b)(11).
(2) For any electric generating unit with a total nameplate generating capacity of less than or equal to 50 megawatts or that is an oil-fired unit, the quantity of pollutants discharged in gasification wastewater shall not exceed the quantity determined by multiplying the flow of gasification wastewater times the concentration listed for TSS in § 423.12(b)(11).
(k)(1)(i)
(ii) For discharges of bottom ash transport water generated before the date determined by the permitting authority, as specified in paragraph (k)(1)(i) of this section, the quantity of pollutants discharged in bottom ash transport water shall not exceed the quantity determined by multiplying the flow of bottom ash transport water times the concentration for TSS listed in § 423.12(b)(4).
(2) For any electric generating unit with a total nameplate generating capacity of less than or equal to 50 megawatts or that is an oil-fired unit, the quantity of pollutants discharged in bottom ash transport water shall not exceed the quantity determined by multiplying the flow of the applicable wastewater times the concentration for TSS listed in § 423.12(b)(4).
(l)
(m) At the permitting authority's discretion, the quantity of pollutant allowed to be discharged may be expressed as a concentration limitation instead of any mass based limitations specified in paragraphs (b) through (l) of this section. Concentration limitations shall be those concentrations specified in this section.
(n) In the event that wastestreams from various sources are combined for treatment or discharge, the quantity of each pollutant or pollutant property controlled in paragraphs (a) through (m) of this section attributable to each controlled waste source shall not exceed the specified limitation for that waste source.
(a)
(1)
(2)
(3)
(4)
(5) [Reserved]
(6)
(7)
(8)(i)
(ii) Total residual chlorine may only be discharged from any single generating unit for more than two hours per day when the discharger demonstrates to the permitting authority that discharge for more than two hours is required for macroinvertebrate control. Simultaneous multi-unit chlorination is permitted.
(9)(i)
(ii) Neither free available chlorine nor total residual chlorine may be discharged from any unit for more than two hours in any one day and not more than one unit in any plant may discharge free available or total residual chlorine at any one time unless the utility can demonstrate to the Regional Administrator or state, if the state has NPDES permit issuing authority, that the units in a particular location cannot operate at or below this level of chlorination.
(10)(i)
(ii) Neither free available chlorine nor total residual chlorine may be discharged from any unit for more than two hours in any one day and not more than one unit in any plant may discharge free available or total residual chlorine at any one time unless the utility can demonstrate to the Regional Administrator or state, if the state has NPDES permit issuing authority, that the units in a particular location cannot operate at or below this level of chlorination.
(iii) At the permitting authority's discretion, instead of the monitoring in 40 CFR 122.11(b), compliance with the standards for the 126 priority pollutants in paragraph (a)(10)(i) of this section may be determined by engineering calculations which demonstrate that the regulated pollutants are not detectable in the final discharge by the analytical methods in 40 CFR part 136.
(11)
(12)
(13) At the permitting authority's discretion, the quantity of pollutant allowed to be discharged may be expressed as a concentration limitation instead of any mass based limitations specified in paragraphs (a)(3) through (10) of this section. Concentration limits shall be based on the concentrations specified in this section.
(14) In the event that wastestreams from various sources are combined for treatment or discharge, the quantity of each pollutant or pollutant property controlled in paragraphs (a)(1) through (13) of this section attributable to each controlled waste source shall not exceed the specified limitation for that waste source.
(b)
(1)
(2)
(3)
(4)
(5) [Reserved]
(6)
(7)
(8)(i)
(ii) Total residual chlorine may only be discharged from any single generating unit for more than two hours per day when the discharger demonstrates to the permitting authority that discharge for more than two hours is required for macroinvertebrate control. Simultaneous multi-unit chlorination is permitted.
(9)(i)
(ii) Neither free available chlorine nor total residual chlorine may be discharged from any unit for more than two hours in any one day and not more than one unit in any plant may discharge free available or total residual chlorine at any one time unless the utility can demonstrate to the Regional Administrator or state, if the state has NPDES permit issuing authority, that the units in a particular location cannot operate at or below this level of chlorination.
(10)(i)
(ii) Neither free available chlorine nor total residual chlorine may be discharged from any unit for more than two hours in any one day and not more than one unit in any plant may discharge free available or total residual chlorine at any one time unless the utility can demonstrate to the Regional Administrator or state, if the state has NPDES permit issuing authority, that the units in a particular location cannot operate at or below this level of chlorination.
(iii) At the permitting authority's discretion, instead of the monitoring in 40 CFR 122.11(b), compliance with the standards for the 126 priority pollutants in paragraph (b)(10)(i) of this section may be determined by engineering calculations demonstrating that the regulated pollutants are not detectable in the final discharge by the analytical methods in 40 CFR part 136.
(11)
(12)
(13)
(14)
(15)
(16)
(17) At the permitting authority's discretion, the quantity of pollutant allowed to be discharged may be expressed as a concentration limitation instead of any mass based limitations specified in paragraphs (b)(3) through (16) of this section. Concentration limits shall be based on the concentrations specified in this section.
(18) In the event that wastestreams from various sources are combined for treatment or discharge, the quantity of each pollutant or pollutant property controlled in paragraphs (b)(1) through (16) of this section attributable to each controlled waste source shall not exceed the specified limitation for that waste source.
(The information collection requirements contained in paragraphs (a)(8)(ii), (a)(9)(ii), and (a)(10)(ii), (b)(8)(ii), (b)(9)(ii), and (b)(10)(ii) were approved by the Office of Management and Budget under control number 2040-0040. The information collection requirements contained in paragraphs (a)(10)(iii) and (b)(10)(iii) were approved under control number 2040-0033.)
(e)
(f)
(g)
(h)
(i)
(a)
(1)
(2)
(3) [Reserved]
(4)(i)
(ii) At the permitting authority's discretion, instead of the monitoring in 40 CFR 122.11(b), compliance with the standards for the 126 priority pollutants in paragraph (a)(4)(i) of this section may be determined by engineering calculations which demonstrate that the regulated pollutants are not detectable in the final discharge by the analytical methods in 40 CFR part 136.
(5)
(b)
(1)
(2)
(3) [Reserved]
(4)(i)
(ii) At the permitting authority's discretion, instead of the monitoring in 40 CFR 122.11(b), compliance with the standards for the 126 priority pollutants in paragraph (b)(4)(i) of this section may be determined by engineering calculations which demonstrate that the regulated pollutants are not detectable in the final discharge by the analytical methods in 40 CFR part 136.
(5)
(6)
(7)
(8)
(9)
(10)
Postal Service.
Notice of a change in rates of general applicability for competitive products.
This notice sets forth changes in rates of general applicability for competitive products.
Daniel J. Foucheaux, Jr., 202-268-2989.
On September 17, 2015, pursuant to their authority under 39 U.S.C. 3632, the Governors of the Postal Service established prices and classification changes for competitive products. The Governors' Decision and the record of proceedings in connection with such decision are reprinted below in accordance with section 3632(b)(2).
Centers for Medicare & Medicaid Services (CMS), HHS.
Proposed rule.
This proposed rule would revise the discharge planning requirements that Hospitals, including Long-Term Care Hospitals and Inpatient Rehabilitation Facilities, Critical Access Hospitals, and Home Health Agencies must meet in order to participate in the Medicare and Medicaid programs. The proposed rule would also implement the discharge planning requirements of the Improving Medicare Post-Acute Care Transformation Act of 2014.
To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on January 4, 2016.
In commenting, please refer to file code CMS-3317-P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one of the ways listed):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
4.
a. For delivery in Washington, DC—Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201.
(Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without Federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
b. For delivery in Baltimore, MD—Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786-7195 in advance to schedule your arrival with one of our staff members.
Comments erroneously mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.
For information on viewing public comments, see the beginning of the
Alpha-Banu Huq, (410) 786-8687.
Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.
Because of the many terms to which we refer by acronym in this proposed rule, we are listing the acronyms used and their corresponding meanings in alphabetical order below:
Discharge planning is an important component of successful transitions from acute care hospitals and post-acute care (PAC) settings. The transition may be to a patient's home (with or without PAC services), skilled nursing facility, nursing home, long term care hospital, rehabilitation hospital or unit, assisted living center, substance abuse treatment program, hospice, or a variety of other settings. The location to which a patient may be discharged should be based on the patient's clinical care requirements, available support network, and patient and caregiver treatment preferences and goals of care.
Although the current hospital discharge planning process meets the needs of many inpatients released from the acute care setting, some discharges result in less-than-optimal outcomes for patients including complications and adverse events that lead to hospital readmissions. Reducing avoidable hospital readmissions and patient complications presents an opportunity for improving the quality and safety of patient care while lowering health care costs.
Patients' post-discharge needs are frequently complicated and multi-factorial, requiring a significant level of on-going planning, coordination, and communication among the health care practitioners and facilities currently caring for a patient and those who will provide post-acute care for the patient, including the patient and his or her caregivers. The discharge planning process should ensure that patients and, when applicable, their caregivers, are properly prepared to be active partners and advocates for their healthcare and community support needs upon discharge from the hospital or PAC setting. Yet patients and their caregivers frequently are not meaningfully involved in the discharge planning process and are unable to name their diagnoses; list their medications, their purpose, or the major side effects; cannot explain their follow-up plan of care; or articulate their treatment preferences and goals of care. For patients who require PAC services, the discharge planning process should ensure that the transition from one care setting to another (for example, from a hospital to a skilled nursing facility or to home with help from a home health agency or community-based services provider (or both) is seamless. The receiving PAC facilities or organizations should have the necessary information and be prepared to assume responsibility for the care of the patient. When patients or receiving facilities or organizations do not have key information such as the information previously mentioned, they are less able to implement the appropriate post-discharge treatment plans. This puts patients at risk for serious complications and increases their chances of being re-hospitalized.
We also believe that hospitals and critical access hospitals (CAHs) should improve their focus on psychiatric and behavioral health patients, including patients with substance use disorders. While the current discharge planning requirements as well as those proposed in this rule include this subset of patients, we believe the special discharge planning needs of these patients are sometimes overlooked. We encourage hospital and CAHs to take the needs of psychiatric and behavioral health patients into consideration when planning discharge and arranging for PAC and community services. With these patients specifically, and just as we believe it should be with other types of patients being discharged, we believe hospitals and CAHs must:
• Identify the types of services needed upon discharge, including options for tele-behavioral health services as available and appropriate;
• Identify organizations offering community services in the psychiatric hospital or unit's community, and demonstrate efforts to establish partnerships with such organizations; arrange, as applicable, for the development and implementation of a specific psychiatric discharge plan for the patient as part of the patient's overall discharge plan; and
• Coordinate with the patient for referral for post-acute psychiatric or behavioral health care, including transmitting pertinent information to the receiving organization as well as making recommendations about the post-acute psychiatric or behavioral health care needed by the patient.
We have also found that not having a thorough understanding of available community services can impact the discharge planning process. If the discharge planning team and patients or their caregivers are not aware of the full range of post-hospital services available, including non-medical services and supports, patients may be sent to care settings that are inappropriate, ineffective, or of inadequate quality. The lack of consistent collaboration and teamwork among health care facilities, patients, their families, and relevant community organizations may negatively impact selection of the best type of patient placement, leading to less than ideal patient outcomes and unnecessary re-hospitalizations. When planning transitions, hospitals should consult with Aging and Disability Resource Centers (ADRCs) (as defined in section 102 of the Older Americans Act of 1965 (42 U.S.C. 3002)), or Area Agencies on Aging (AAAs) (also defined in section 102 of the Older Americans Act of 1965 (42 U.S.C. 3002)) and Centers for Independent Living (CILs) (as defined in section 702 of the Rehabilitation Act of 1973 (29 U.S.C. 796a)), or Substance Abuse Mental Health Services Administration's (SAMHSA's) treatment locator, or any combination of the centers or associations. ADRCs, AAAs, and CILs are required by federal statute to help connect individuals to community services and supports, and many of these organizations already help chronically impaired individuals with transitions across settings, including transitions from hospitals and PAC settings back home. Ongoing communication with a feedback loop among health care practitioners and
We believe the provisions of the Improving Medicare Post-Acute Care Transformation Act of 2014 (IMPACT Act) (Pub. L. 113-185) that require hospitals, including but not limited to acute care hospitals, CAHs and certain PAC providers including long-term care hospitals (LTCHs), inpatient rehabilitation facilities (IRFs), home health agencies (HHAs), and skilled nursing facilities (SNFs), to take into account quality measures and resource use measures to assist patients and their families during the discharge planning process will encourage patients and their families to become active participants in the planning of their transition to the PAC setting (or between PAC settings). This requirement will allow patients and their families' access to information that will help them to make informed decisions about their post-acute care, while addressing their goals of care and treatment preferences. Patients and their families that are well informed of their choices of high-quality PAC providers, including providers of community services and supports, may reduce their chances of being re-hospitalized.
The IMPACT Act requires the standardization of PAC assessment data that can be evaluated and compared across PAC provider settings, and used by hospitals, CAHs, and PAC providers, to facilitate coordinated care and improved Medicare beneficiary outcomes. Section 2 of the IMPACT Act added new section 1899B to the Social Security Act (Act). That section states that the Secretary of the Department of Health and Human Services (the Secretary) must require PAC providers (that is, HHAs, SNFs, IRFs and LTCHs) to report standardized patient assessment data, data on quality measures, and data on resource use and other measures. Under section 1899B(a)(1)(B) of the Act, patient assessment data must be standardized and interoperable to allow for the exchange of data among PAC providers and other Medicare participating providers or suppliers. Section 1899B(a)(1)(C) of the Act requires the modification of existing PAC assessment instruments to allow for the submission of standardized patient assessment data to enable comparison of this assessment data across providers. The IMPACT Act requires that assessment instruments be modified to utilize the standardized data required under section 1899B(b)(1)(A) of the Act, no later than October 1, 2018 for SNFs, IRFs, and LTCHs and no later than January 1, 2019 for HHAs. The statutory timing varies for the standardized assessment data described in subsection (b), data on quality measures described in subsection (c), and data on resource use and other measures described in subsection (d) of section 1899B. We currently are developing additional public guidance and we note that many of these PAC provisions are being addressed in separate rulemakings. More information can be found on the CMS Web site at
Section 1899B(j) of the Act requires that we allow for stakeholder input, such as through town halls, open door forums, and mailbox submissions, before the initial rulemaking process to implement section 1899B. To meet this requirement, we provided the following opportunities for stakeholder input: (a) We convened a technical expert panel (TEP) to gather input on three cross-setting measures identified as potential measures to the requirements of the IMPACT Act, that included stakeholder experts and patient representatives on February 3, 2015; (b) we provided two separate listening sessions on February 10th and March 24, 2015 on the implementation of the IMPACT Act, which also gave the public the opportunity to give CMS input on their current use of patient goals, preferences, and health assessment information in assuring high quality, person-centered and coordinated care enabling long-term, high quality outcomes; (c) we sought public input during the February 2015 ad hoc Measure Applications Partnership (MAP) process regarding the measures under consideration with respect to IMPACT Act domains; and (d) we implemented a public mail box for the submission of comments in January 2015 located at
Section 1899B(i) of the Act, which addresses discharge planning, requires the modification of the Conditions of Participation (CoPs) and subsequent interpretive guidance applicable to PAC providers, hospitals, and CAHs at least every 5 years, beginning no later than January 1, 2016. These regulations must require that PAC providers, hospitals, and CAHs take into account quality, resource use, and other measures under subsections (c) and (d) of section 1899B in the discharge planning process.
This proposed rule would implement the discharge planning requirements mandated in section 1899B(i) of the IMPACT Act by modifying the discharge planning or discharge summary CoPs for hospitals, CAHs, IRFs, LTCHs, and HHAs. The IMPACT Act identifies LTCHs and IRFs as PAC providers, but the hospital CoPs also apply to LTCHs and IRFs since these facilities, along with short-term acute care hospital, are classifications of hospitals. All classifications of hospitals are subject to the same hospital CoPs. Therefore, these PAC providers (including freestanding LTCHs and IRFs) are also subject to the proposed revisions to the hospital CoPs. Proposed discharge planning requirements for SNFs are addressed in the proposed rule, “Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities” (80 FR 42167, July 16, 2015) at
Various sections of the Act list the requirements that each provider must meet to be eligible for Medicare and Medicaid participation. Each statutory provision also specifies that the Secretary may establish other
Section 1861(e) of the Act defines the term “hospital” and paragraphs (1) through (8) of this section list the requirements that a hospital must meet to be eligible for Medicare participation. Section 1861(e)(9) of the Act specifies that a hospital must also meet other requirements as the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services in the institution. In addition, section 1861(e)(6)(B) of the Act requires that a hospital have a discharge planning process that meets the discharge planning requirements of section 1861(ee) of the Act.
Under section 1861(e) of the Act, the Secretary has established in regulation at 42 CFR part 482 the requirements that a hospital must meet to participate in the Medicare program. The hospital CoPs are found at § 482.1 through § 482.66. Section 1905(a) of the Act provides that Medicaid payments may be applied to hospital services. Regulations at § 440.10(a)(3)(iii) require hospitals to meet the Medicare CoPs to qualify for participation in the Medicaid program.
The current hospital discharge planning requirements at § 482.43, “Discharge planning,” were originally published on December 13, 1994 (59 FR 64141), and were last updated on August 11, 2004 (69 FR 49268). Under the current discharge planning requirements, hospitals must have in effect a discharge planning process that applies to all inpatients. The hospital must also have policies and procedures specified in writing. Over the years, we have made continuous efforts to reduce patient readmissions by strengthening and modernizing the nation's health care system to provide access to high quality care and improved health at lower cost. Since 2004, there has been a growing recognition of the need to make discharge from the hospital to another care environment safer, and to reduce the rise in preventable and costly hospital readmissions, which are often due to avoidable adverse events. As a result of our overall efforts, we refined the discharge planning regulations in 2004 (69 FR 49268) and updated the interpretive guidance in 2013 (Pub. L. 100-07, State Operations Manual, Appendix A:
Subsequently, the IMPACT Act was signed on October 6, 2014, and directs the Secretary to publish regulations to modify CoPs and interpretive guidance to require PAC providers, hospitals and CAHs take into account quality, resource use, and other measures required by the IMPACT Act to assist hospitals, CAHs, PAC providers, patients, and the families of patients with discharge planning, and to also address the patient's treatment preferences and goals of care. In light of these concerns, our continued efforts to reduce avoidable hospital readmission, and the IMPACT Act requirements, we are proposing to revise the hospital discharge planning requirements.
The current discharge planning identification process at § 482.43(a) requires hospitals to identify patients for whom a discharge plan is necessary, but this does not necessarily lead to a discharge plan. The regulation does not specify criteria for such identification, leading to variation across acute care hospital settings as to how they approach this task. Some hospitals use self-developed or industry-generated criteria for identifying patients who may be in need of a discharge plan. Others use pre-determined clinical factors such as age, co-morbidities, previous hospitalizations, and available social support systems to identify patients who may need a discharge plan. Additionally, hospitals use any number of other factors such as physician preference, nursing, social work and case management experience and history, current workload, and common practice to develop the discharge plan. Finally, some hospitals develop discharge plans for every inpatient, regardless of any of the factors previously mentioned. As a result of these and other differences between hospitals, there is considerable variation in the extent to which there are successful transitions from acute care hospitals.
Similarly, the current requirements for a discharge planning evaluation of a patient, at § 482.43(b), after he or she is initially identified as potentially needing post-hospital services also do not guarantee the development of a discharge plan.
Hospital patients discharged back to their home may be given literature to read about medication usage and required therapies; prescriptions for post-hospital medications and supplies; and referrals to post-hospital resources. This approach does not adequately reinforce the necessary skills that patients, their caregivers, and support persons need to meet post-hospital clinical needs. Inadequate patient education has led to poor outcomes, including medication errors and omissions, infection, injuries, worsening of the initial medical condition, exacerbation of a different medical condition, and re-hospitalization.
We also note there has been confusion in the hospital setting regarding the implementation requirement in the current discharge planning CoP. As stated at current § 482.43(c)(3), the hospital must arrange for the initial implementation of the patient's discharge plan. The level of implementation of this standard varies widely, leading to inconsistent transitions from the acute care hospital. We believe that providing more specific
We propose to revise the existing requirements in the form of six standards at § 482.43. The most notable revision would be to require that all inpatients and specific categories of outpatients be evaluated for their discharge needs and have a written discharge plan developed. Many of the current discharge planning concepts and requirements would be retained, but revised to provide more clarity. We also propose to require specific discharge instructions for all patients. At present, hospitals have some discretion and not every patient receives specific, written instructions.
We have reviewed the available literature on readmissions and sought to understand the various factors that influence the causes of avoidable readmissions. We recognize that much evidence-based research has been done to identify interventions that reduce readmissions of individuals with specific characteristics or conditions such as the elderly, cardiac patients, and patients with chronic conditions.
We propose to continue our efforts to reduce patient readmissions by improving the discharge planning process that would require hospitals to take into account the patient's goals and preferences in the development of their plans and to better prepare patients and their caregiver/support person(s) (or both) to be active participants in self-care and by implementing requirements that would improve patient transitions from one care environment to another, while maintaining continuity in the patient's plan of care. The following is a discussion of each of the proposed standards.
We propose at § 482.43, Discharge planning, to require that a hospital have a discharge planning process that focuses on the patient's goals and preferences and on preparing patients and, as appropriate, their caregivers/support person(s) to be active partners in their post-discharge care, ensuring effective patient transitions from hospital to post-acute care while planning for post-discharge care that is consistent with the patient's goals of care and treatment preferences, and reducing the likelihood of hospital readmissions.
In newly proposed § 482.43(a), we propose to establish a new standard, “Design”, and would require that hospital medical staff, nursing leadership, and other pertinent services provide input in the development of the discharge planning process. We also propose to require that the discharge planning process be specified in writing and be reviewed and approved by the hospital's governing body. We would expect that the discharge planning process policies and procedures would be developed and reviewed periodically by the hospital's governing body.
We propose to revise the current requirement at § 482.43(a), which requires a hospital to identify those patients for whom a discharge plan is necessary. At proposed § 482.43(b), “Applicability,” we would require that many types of patients be evaluated for post discharge needs. We would require that the discharge planning process apply to all inpatients, as well as certain categories of outpatients, including, but not limited to patients receiving observation services, patients who are undergoing surgery or other same-day procedures where anesthesia or moderate sedation is used, emergency department patients who have been identified by a practitioner as needing a discharge plan, and any other category of outpatient as recommended by the medical staff, approved by the governing body and specified in the hospital's discharge planning policies and procedures. We believe that the aforementioned categories of patients would benefit from an evaluation of their discharge needs and the development of a written discharge plan.
We propose at § 482.43(c), “Discharge planning process,” to require that hospitals implement a discharge planning process to begin identifying, early in the hospital stay, the anticipated post-discharge goals, preferences, and needs of the patient and begin to develop an appropriate discharge plan for the patients identified in proposed § 482.43(b). The average length of stay in the hospital setting has decreased significantly since the current discharge planning standards were written. Timely identification of the patient's goals, preferences, and needs and development of the discharge plan would reduce delays in the overall discharge process. We propose to require that the discharge plan be tailored to the unique goals, preferences and needs of the patient. For example, based on the anticipated discharge needs, a discharge plan in the early stages of development for a young healthy patient could possibly be as concise as a plan to provide instructions on follow-up appointments, and information on the warning signs and symptoms which may indicate the need to seek medical attention. On the other hand, the discharge needs of patients with co-morbidities, complex medical or surgical histories (or both), with mental health or substance use disorders (including indications of opioid abuse), socio-economic and literacy barriers, and multiple medications would require a more extensive discharge plan that takes into account all of these factors and the patients treatment preferences and goals of care. As previously discussed, patient referrals to or consultation with community care organizations will be a key step, for some, in assuring successful patient outcomes. Therefore, we believe that discharge planning for patients is a process that involves the consideration of the patient's unique circumstances, treatment preferences, and goals of care, and not solely a documentation process.
We remind hospitals that they must continue to abide by federal civil rights laws, including Title VI of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and section 504 of the Rehabilitation Act of 1973, when developing a discharge planning process. To this end, hospitals should take reasonable steps to provide individuals with limited English proficiency or physical, mental, or cognitive and intellectual disabilities meaningful access to the discharge planning process, as required under Title VI of the Civil Rights Act, as implemented at 45 CFR 80.3(b)(2). Discharge planning would be of little value to patients who cannot understand or appropriately follow the discharge plans discussed in this rule. Without appropriate language assistance or auxiliary aids and services, discharge planners would not be able to fully involve the patient and caregiver/support person in the development of the discharge plan. Furthermore, the discharge planner would not be fully aware of the patient's goals for discharge.
Additionally, effective discharge planning will assist hospitals in complying with the U.S. Supreme Court's holding in
We also remind hospitals, HHAs, and CAHs of existing state laws and requirements regarding discharge planning and their obligations to abide by these requirements. Additionally, they should also be aware of unique and innovative state programs focused on discharge planning.
We propose to combine and revise two existing requirements, § 482.43(b)(2) and § 482.43(c)(1), into a single requirement at § 482.43(c)(1), simplifying the requirement and incorporating some minor clarifying revisions. The resulting provision would require that a registered nurse, social worker, or other personnel qualified in accordance with the hospital's discharge planning policy, coordinate the discharge needs evaluation and the development of the discharge plan.
In proposed § 482.43(c)(2), we propose to establish a specific time frame during which discharge planning must begin. Section 482.43(a) currently requires a hospital to identify those patients who may need a discharge plan at an early stage of hospitalization. Ideally, discharge planning begins at the time of inpatient admission or outpatient registration. We understand that this is not always practicable. However, the current requirement might be considered too imprecise and could allow for discharge planning to be repeatedly delayed and perhaps several days to elapse before discharge planning is considered. Therefore, we would clarify the requirement by requiring that a hospital would begin to identify anticipated discharge needs for each applicable patient within 24 hours after admission or registration, and the discharge planning process is completed prior to discharge home or transfer to another facility and without unduly delaying the patient's discharge or transfer. If the patient's stay was less than 24 hours, the discharge needs would be identified prior to the patient's discharge home or transfer to another facility. This policy would not apply to emergency-level transfers for patients who require a higher level of care. However, while an emergency-level transfer would not need a discharge evaluation and plan, we would expect that the hospital would send necessary and pertinent information with the patient that is being transferred to another facility.
We propose to retain the current requirement set out at § 482.43(c)(4), and re-designate it with clarifications at § 482.43(c)(3). Currently we require that the hospital reassess the patient's discharge plan if there are factors that may affect continuing care needs or the appropriateness of the discharge plan. We propose at § 482.43(c)(3) to require that the hospital's discharge planning process ensure an ongoing patient evaluation throughout the patient's hospital stay or visit to identify any changes in the patient's condition that would require modifications to the discharge plan. The evaluation to determine a patient's continued hospitalization (or in other words, their readiness for discharge or transfer), is a current standard medical practice, and additionally is a current hospital CoP requirement at § 482.24(c). This proposed standard would expand upon the current regulation by requiring that the discharge evaluation be ongoing, during the patient's hospitalization or outpatient visit, and that any changes in a patient's condition that would affect the patient's readiness for discharge or transfer be reflected and documented in the discharge plan.
We propose a new requirement at § 482.43(c)(4) that the practitioner responsible for the care of the patient be involved in the ongoing process of establishing the patient's goals of care and treatment preferences that inform the discharge plan, just as they are with other aspects of patient care during the hospitalization or outpatient visit.
We propose to re-designate § 482.43(b)(4) as § 482.43(c)(5) to require, that as part of identifying the patient's discharge needs, the hospital consider the availability of caregivers and community-based care for each patient, whether through self-care, follow-up care from a community-based providers, care from a caregiver/support person(s), care from post-acute health care facilities or, in the case of a patient admitted from a long-term care or other residential care facility, care in that setting.
Hospitals should be consistent in how they identify and evaluate the anticipated post-discharge needs of the patient to support and facilitate a safe transition from one care environment to another. The proposed requirement at § 482.43(c)(5) would require hospitals to consider the patient's or caregiver's capability and availability to provide the necessary post-hospital care. As part of the on-going discharge planning process, hospitals would identify areas where the patient or caregiver/support person(s) would need assistance, and address those needs in the discharge plan in a way that takes into account the patient's goals and preferences. In addition, we encourage hospitals to consider potential technological tools or methods, such as telehealth, to support the individual's health upon discharge
We propose that hospitals consider the availability of and access to non-health care services for patients, which may include home and physical environment modifications including assistive technologies, transportation services, meal services or household services (or both), including housing for homeless patients. These services may not be traditional health care services, but they may be essential to the patient's ongoing care post-discharge and ability to live in the community. Hospitals should be able to provide additional information on non-health care resources and social services to patients and their caregiver/support person(s) and they should be knowledgeable about the availability of these resources in their community, when applicable. In addition, we encourage hospitals to consider the availability of supportive housing, as an alternative to homeless shelters that can facilitate continuity of care for patients in need of housing.
We would expect hospitals to be well informed of the availability of community-based services and organizations that provide care for patients who are returning home or who want to avoid institutionalization, including ADRCs, AAAs, and CILs, and provide information on these services and organizations when appropriate. ADRCs, AAAs, and CILs are required by federal statute to help connect individuals to community services and supports, and many of these organizations already help chronically impaired individuals with transitions across settings, including transitions from hospitals and PAC settings back home.
We encourage hospitals to develop collaborative partnerships with providers of community-based services to improve transitions of care that might support better patient outcomes. More information on these community-based services and organizations can be found in the following Web sites:
• For information on Centers for Independent Living (CILs):
• For information on Area Agencies on Aging (AAAs):
Accordingly, we propose that hospitals must consider the following in evaluating a patient's discharge needs, including but not limited to:
• Admitting diagnosis or reason for registration;
• Relevant co-morbidities and past medical and surgical history;
• Anticipated ongoing care needs post-discharge;
• Readmission risk;
• Relevant psychosocial history;
• Communication needs, including language barriers, diminished eyesight and hearing, and self-reported literacy of the patient, patient's representative or caregiver/support person(s), as applicable;
• Patient's access to non-health care services and community-based care providers; and
• Patient's goals and treatment preferences.
During the evaluation of a patient's relevant co-morbidities and past medical and surgical history, we encourage providers to consider using their state's Prescription Drug Monitoring Program (PDMP). PDMPs are state-run electronic databases used to track the prescribing and dispensing of controlled prescription drugs to patients. They are designed to monitor this information for suspected abuse or diversion and can give a prescriber or pharmacist critical information regarding a patient's controlled substance abuse history. This information can help prescribers and pharmacists identify high-risk patients who would benefit from early interventions (
In 2013, HHS prepared a report to Congress regarding enhancing the interoperability of State prescription drug monitoring programs with other technologies and databases used for detecting and reducing fraud, diversion, and abuse of prescription drugs. The report, prepared by The Office of the Assistant Secretary for Health (OASH), The Office of the National Coordinator for Health Information Technology (ONC), SAMHSA, and the Centers for Disease Control and Prevention (CDC) cites positive research that suggests that PDMPs reduce the prescribing of Schedule II opioid analgesics, lowers substance abuse treatment rates from opioids, and potentially reduces doctor shopping by increasing awareness among providers about at-risk patients. In addition, the report notes that surveys indicate that prescribers find PDMPs to be useful tools.
In addition to highlighting the potential benefits, the report finds that PDMPs encounter challenges in two areas: Legal and policy challenges and technical challenges. Specifically, the report points out issues, including significant interoperability problems, such as the lack of standard methods to exchange and integrate data from PDMPs to health IT systems. The report also describes legal and policy issues regarding who can use and access PDMPs, concerns with timely data transmission, concerns about the reliance on third parties to transmit data between states, and privacy and security challenges. In addition, the report discusses fiscal challenges, technical challenges including the lack of common technical standards, vocabularies, system-level access controls to share information with EHRs and pharmacy systems, data transmission concerns, and concerns with the current manner in which providers access the electronic PDMP database.
The report concludes that while PDMPs are promising tools to reduce the prescription drug abuse epidemic and improve patient care, addressing these existing challenges can greatly improve the ability of states to establish interoperability and leverage PDMPs to reduce fraud, diversion, and abuse of prescription drugs. The report offers several recommendations for addressing these challenges and we refer readers to the report in its entirety at the following Web site:
Given the potential benefits of PDMPs as well as some of the challenges noted above, we are soliciting comments on whether providers should be required to consult with their state's PDMP and review a patient's risk of non-medical use of controlled substances and substance use disorders as indicated by the PDMP report. As discussed in detail below we are also soliciting comments on the use of PDMPs in the medication reconciliation process.
We propose a new requirement at § 482.43(c)(6) that the patient and the caregiver/support person(s), be involved in the development of the discharge plan and informed of the final plan to prepare them for post-hospital care. Hospitals should integrate input from the patient, caregiver/support person(s) whenever possible. This proposed requirement provides the opportunity to engage the patient or caregiver/support person(s) (or both) in post-discharge-decision making and supports the current patient rights requirement at § 483.13 in which the patient has the right to participate in and make decisions regarding the development and implementation of his or her plan of care. This proposed requirement clarifies our current expectation regarding engaging caregivers/support persons in evaluating and planning a patient's discharge or transfer.
We propose a new requirement at § 482.43(c)(7) to require that the patient's discharge plan address the patient's goals of care and treatment preferences. During the discharge planning process, we would expect that the appropriate medical staff would discuss the patient's post-acute care goals and treatment preferences with the patient, the patient's family or their caregiver/support persons (or both) and subsequently document these goals and preferences in the medical record. We would expect these documented goals and treatment preferences to be taken into account throughout the entire discharge planning process.
We propose a new requirement at § 482.43(c)(8) to require that hospitals assist patients, their families, or their caregiver's/support persons in selecting a PAC provider by using and sharing data that includes but is not limited to HHA, SNF, IRF, or LTCH data on quality measures and data on resource use measures. Furthermore, the hospital would have to ensure that the PAC data on quality measures and data on resource use measures is relevant and applicable to the patient's goals of care and treatment preferences. We would also expect the hospital to document in the medical record that the PAC data on quality measures and resource use measures were shared with the patient and used to assist the patient during the discharge planning process.
We note that quality measures are defined in the IMPACT Act as measures relating to at least the following domains: Standardized patient assessments, including functional status, cognitive function, skin integrity, and medication reconciliation; by contrast, resource use measures are defined as including total estimated Medicare spending per individual, discharge to community, and measures to reflect all-condition risk-adjusted preventable hospital readmission rates. Accordingly, this proposed rule does not address or include further definition of these terms, which will be addressed and established in forthcoming regulations or other issuances. However, we advise providers to use other sources for information on PAC quality and resource use data, such as the data provided through the Nursing Home Compare and Home Health Compare Web sites, until the measures stipulated
As required by the IMPACT Act, hospitals must take into account data on quality measures and data on resource use measures of PAC providers during the discharge planning process. We would expect that the hospital would be available to discuss and answer patients and their caregiver's questions about their post-discharge options and needs.
In order to increase patient involvement in the discharge planning process and to emphasize patient preferences throughout the patient's course of treatment, we believe that hospitals must consider the aforementioned data in light of the patient's goals of care and treatment preferences. For example, the hospital could provide quality data on PAC providers that are within the patient's preferred geographic area. In another instance, hospitals could provide quality data on HHAs based on the patient's need for continuing care post-discharge and preference to receive this care at home. Hospitals should assist patients as they choose a high quality PAC provider. However, we would expect that hospitals would not make decisions on PAC services on behalf of patients and their families and caregivers and instead focus on person-centered care to increase patient participation in post-discharge care decision making. Person-centered care focuses on the patient as the locus of control, supported in making their own choices and having control over their daily lives.
We propose to re-designate and revise the current requirement set out at § 482.43(b)(5) at new § 482.43(c)(9). We would require that the patient's discharge needs evaluation and discharge plan be documented and completed on a timely basis, based on the patient's goals, preferences, strengths, and needs, so that appropriate arrangements for post-hospital care are made before discharge. This requirement would prevent the patient's discharge or transfer from being unduly delayed. We believe that in response to this requirement, hospitals would establish more specific time frames for completing the evaluation and discharge plans based on the needs of their patients and their own operations. All relevant patient information would be incorporated into the discharge plan to facilitate its implementation and the discharge plan must be included in the patient's medical record. The results of the evaluation must also be discussed with the patient or patient's representative. Furthermore, we believe that hospitals will use their evaluation of the discharge planning process, with solicitation of feedback from other providers and suppliers in the community, as well as from patients and caregivers, to revise their timeframes, as needed. We encourage hospitals to make use of available health information technology, such as health information exchanges, to enhance the efficiency and effectiveness of their discharge process.
We propose to re-designate and revise the requirement at current § 482.43(e) at new § 482.43(c)(10). We would require that the hospital assess its discharge planning process on a regular basis. We propose to require that the assessment include ongoing review of a representative sample of discharge plans, including patients who were readmitted within 30 days of a previous admission, to ensure that they are responsive to patient discharge needs. This evaluation will assist hospitals to improve the discharge planning process. We believe the evaluation can be incorporated into the Quality Assessment and Performance Improvement (QAPI) process, although we have not explicitly required this coordination and solicit comments on doing so.
We propose to re-designate and revise the current requirement at § 482.43(c)(5) (which currently requires that as needed, the patient and family or interested persons be counseled to prepare them for post-hospital care) as § 482.43(d), “Discharge to home,” to require that the discharge plan include, but not be limited to, discharge instructions for patients described in proposed § 482.43(b) in order to better prepare them for managing their health post-discharge. The phrase “patients discharged to home” would include, but not be limited to, those patients returning to their residence, or to the community if they do not have a residence, who require follow-up with their primary care provider (PCP) or a specialist; HHAs; hospice services; or any other type of outpatient health care service. The phrase “patients discharged to home” would not refer to patients who are transferred to another inpatient acute care hospital, inpatient hospice facility or a SNF. We believe that our proposed revisions to the current requirement provide more clarity with respect to our proposed intent, and allow us to state more fully what we would expect in the way of better preparing the patient or their caregiver(s)/support persons (or both) regarding post-discharge care.
We propose at § 482.43(d)(1) that discharge instructions must be provided at the time of discharge to patients, or the patient's caregiver/support person (s), (or both) who are discharged home or who are referred to PAC services. We are also proposing that practitioners/facilities (such as a HHA or hospice agency and the patient's PCP), receive the patient's discharge instructions at the time of discharge if the patient is referred to follow up PAC services. Discharge instructions can be provided to patients and their caregivers/support person(s) in different ways, including in paper and electronic formats, depending on the needs, preferences, and capabilities of the patients and caregivers. We would expect that discharge instructions would be carefully designed to be easily understood by the patient or the patient's caregiver/support person (or both). Resources on providing information that can be easily understood by patients are readily available and we refer readers to the National Standards for Culturally and Linguistically Appropriate Services in Health and Health Care (the National CLAS Standards), for guidance on providing instructions in a culturally and linguistically appropriate manner at
In addition, as a best practice, hospitals should confirm patient or the patient's caregiver/support person's (or both) understanding of the discharge instructions. We recommend that hospitals consider the use of “teach-back” during discharge planning and upon providing discharge instructions to the patient. “Teach-back” is a way to confirm that a practitioner has explained to the patient what he or she needs to know in a manner that the patient understands. Training on the use of “teach-back” to ensure patient understanding of transition of care planning and appropriate medication use is readily available and we refer readers to the following resource for information on the use of “teach-back”:
At § 482.43(d)(2)(iii), we propose to require that the patient's discharge instructions include all medications prescribed and over-the-counter for use after the patient's discharge from the hospital. This should include a list of the name, indication, and dosage of each medication along with any significant risks and side effects of each drug as appropriate to the patient. Furthermore, we propose a new requirement at § 482.43(d)(2)(v) that the patient's medications would be reconciled. Medication reconciliation, according to the American Medical Association, is the process of making sense of patient medications and resolving conflicts between different sources of information to minimize harm and maximize therapeutic effects.
In the context of this proposed rule, medication reconciliation would include reconciliation of the patient's discharge medication(s) as well as with the patient's pre-hospitalization/visit medication(s) (both prescribed and over-the-counter); comparing the medications that were prescribed before the hospital stay/visit and any medications started during the hospital stay/visit that are to be continued after discharge, and any new medications that patients would need to take after discharge. We would expect that any medication discrepancies (omissions, duplications, conflicts) would be corrected as part of the medication reconciliation process. Hospitals may utilize a number of approaches to ensure vigilant medication reconciliation. The medication reconciliation process should be a partnership between the patient and the healthcare team, be person-centered, and incorporate solutions to linguistic, cultural, socio-economic, and literacy barriers. We are proposing that all patients have an accurate medication list prior to hospital discharge or transfer. The actual process used for medication reconciliation might vary among hospitals. We encourage hospitals to make use of current health information technology when establishing their medication reconciliation process. There are also many published resources available to assist hospitals with implementing this requirement. We refer readers to the following examples of resources that can be used to assist hospitals with the implementation of a medication reconciliation process:
• The Re-Engineered Discharge (RED) Toolkit (
• The Hospital Guide to Reducing Medicaid Readmissions (
• The AHRQ Health Literacy Universal Precautions Toolkit (
• The SHARE Approach (
• The Guide to Patient and Family Engagement in Hospital Quality and Safety (
• Medications at Transitions and Clinical Handoffs (MATCH) Toolkit for Medication Reconciliation (
• The MARQUIS (Multi-Center Medication Reconciliation Quality Improvement Study) (
To enhance patient understanding of their medications, generic and proprietary names are expected to be provided for each medication, when available. The patient or caregiver/support person (or both) may be involved in reconciling medications and creating a new medication list. We would also expect that the medication reconciliation process would include a written list of all medications that a patient should take until further instructions are given by his or her practitioner at a follow-up appointment.
Furthermore, we would expect the medication reconciliation process to consider how patients would obtain their post-discharge medications. Many of the types of patients for whom discharge planning would be required under the proposed regulation are discharged from the hospital with
As part of the medication reconciliation process, we encourage practitioners to consult with their state's PDMP. In section II.A.3 of this proposed rule we discuss the potential benefits as well as the challenges associated with the use of PDMPs. Given these potential benefits and challenges, we are soliciting comments on whether, as part of the medication reconciliation process, practitioners should be required to consult with their state's PDMP to reconcile patient use of controlled substances as documented by the PDMP, even if the practitioner is not going to prescribe a controlled substance.
We propose a new requirement at § 482.43(d)(2)(v) that written instructions, in paper or electronic format (or both), would be provided to the patient, and that the instructions would document follow-up care, appointments, pending and/or planned diagnostic tests, and any pertinent telephone numbers for practitioners that might be involved in the patient's follow-up care or for any providers/suppliers to whom the patient has been referred for follow-up care. The choice of format of the instructions should be based on patient and caregiver needs, preferences, and capabilities. Clear communication and discussions with the patient or other caregivers (or both) for follow-up care are an important determinant of patient outcomes following hospitalization. Hospitals should ascertain that the patient understands their discharge instructions. The major elements of any follow-up care would be required to be written so that the patient, caregiver/support person can refer to them post-hospitalization.
In addition to the patient receiving discharge instructions, it is important that the providers responsible for follow-up care with a patient (including the primary care provider (PCP) or other practitioner) receive the necessary medical information to support continuity of care. We therefore propose at § 482.43(d)(3) to require that the hospital send the following information to the practitioner (s) responsible for follow up care, if the practitioner has been clearly identified:
• A copy of the discharge instructions and the discharge summary within 48 hours of the patient's discharge;
• Pending test results within 24 hours of their availability;
• All other necessary information as specified in proposed § 482.43(e)(2).
We remind hospitals to provide this information in a manner that complies with all applicable privacy and security regulations.
Finally, we propose a new § 482.43(d)(4) to require, for patients discharged to home, that the hospital must establish a post-discharge follow-up process. Many studies have found that many patients experience major adverse health events post-discharge. These are often associated with medication compliance. As one example, a study, funded by Agency for Healthcare Research and Quality (AHRQ) and published in the
We propose to re-designate and revise the standard currently set out at § 482.43(d) as § 482.43(e), “Transfer of patients to another health care facility,” by clarifying our expectations of the discharge and transfer of patients. We would continue to require that all hospitals communicate necessary information of patients who are discharged with transfer to another facility. The receiving facility may be another hospital (including an inpatient psychiatric hospital or a CAH) or a PAC facility. We believe that the transition of the patient from one environment to another should occur in a way that promotes efficiency and patient safety, through the communication of necessary information between the hospital and the receiving facility. We believe that the timely communication of necessary clinical information between health care providers support continuity of patient care, improves patient safety, and can reduce hospital readmissions. In 2014, many hospitals were using certified electronic health records that capture and standardize clinical data necessary to ensure safe transition in care delivery.
The current discharge requirement set out at § 482.43(d) requires hospitals that transfer patients to another facility to send with the patient (at the time of
• Demographic information, including but not limited to name, sex, date of birth, race, ethnicity, and preferred language;
• Contact information for the practitioner responsible for the care of the patient and the patient's caregiver/support person(s);
• Advance directive, if applicable;
• Course of illness/treatment;
• Procedures;
• Diagnoses;
• Laboratory tests and the results of pertinent laboratory and other diagnostic testing;
• Consultation results;
• Functional status assessment;
• Psychosocial assessment, including cognitive status;
• Social supports;
• Behavioral health issues;
• Reconciliation of all discharge medications with the patient's pre-hospital
admission/registration medications (both prescribed and over-the-counter);
• All known allergies, including medication allergies;
• Immunizations;
• Smoking status;
• Vital signs;
• Unique device identifier(s) for a patient's implantable device(s), if any;
• All special instructions or precautions for ongoing care, as appropriate;
• Patient's goals and treatment preferences; and
• All other necessary information to ensure a safe and effective transition of care that supports the post-discharge goals for the patient.
In addition to these proposed minimum elements, necessary information must also include a copy of the patient's discharge instructions, the discharge summary, and any other documentation that would ensure a safe and effective transition of care, as applicable.
While we are not proposing a specific form, format, or methodology for the communication of this information for all facilities, we strongly believe that those facilities that are electronically capturing information should be doing so using certified health IT that will enable real time electronic exchange with the receiving provider. By using certified health IT, facilities can ensure that they are transmitting interoperable data that can be used by other settings, supporting a more robust care coordination and higher quality of care for patients. We are soliciting comments on these proposed medical information requirements.
We note that HHS has a number of initiatives designed to encourage and support the adoption of health information technology and to promote nationwide health information exchange to improve the quality of health care. HHS believes all patients, their families, and their healthcare providers should have consistent and timely access to health information in a standardized format that can be securely exchanged between the patient, providers, and others involved in the patient's care.
These initiatives are designed to encourage HIE among all health care providers, including those who are not eligible for the Electronic Health Record (EHR) Incentive Programs, and are designed to improve care delivery and coordination across the entire care continuum. Our revisions to this rule are intended to recognize the advent of electronic health information technology and to accommodate and support adoption of ONC certified health IT and interoperability standards. We believe that the use of this technology can effectively and efficiently help facilities and other providers improve internal care delivery practices, support the exchange of important information across care team members (including patients and caregivers) during transitions of care, and enable reporting of electronically specified clinical quality measures (eCQMs). For more information on guidance for ineligible providers, we direct stakeholders to the ONC guidance for EHR technology developers serving
This guidance will be updated as new editions of certification criteria are released.
Additionally, we propose that the requirement and the timeframe for communicating necessary information for patients being transferred to another healthcare facility remain the same as in the current requirement. That is, hospitals would continue to be required to provide this information at the time of the patient's discharge and transfer to the receiving facility. Hospitals are encouraged to consider adapting or incorporating electronic tools (or both) to facilitate and streamline information that would fulfill the proposed discharge requirements to ensure a successful transfer of care. Hospitals are also encouraged to continue the practice of direct communication between the sending and receiving facilities. Clinician-to-clinician contact to discuss the patient's transfer, review information provided by the sending facility, and answer follow-up questions can help smooth the transfer process for the patient and the facilities. We believe that this direct communication is beneficial for all parties, and that this practice should continue to be used in addition to our proposed information-exchange requirements.
We propose to re-designate and revise the requirements of current § 482.43(c)(6) through (8) at new § 482.43(f), “Requirements for post-acute care services.” This standard is based in part on specific statutory requirements located at sections 1861(ee)(2)(H) and 1861(ee)(3) of the Act, with the addition of IRF and LTCH PAC providers in the regulatory text, in order to provide consistency with the IMPACT Act. The current regulation directs hospitals to provide a list of available Medicare-participating HHAs or SNFs to patients for whom home health care or PAC services are indicated. We are proposing that for patients who are enrolled in managed care organizations, the hospital must make the patient aware that they need to verify the participation of HHAs or SNFs in their network. If the hospital has information regarding which providers participate in the managed care organization's network, it must share this information with the patient. The hospital must document in the patient's medical record that the list was presented to the patient. The patient or their caregiver/support persons must be informed of the patient's freedom to choose among providers and to have their expressed wishes respected, whenever possible. The final component of the retained provision would be the hospital's disclosure of any financial interest in the referred HHA or SNF. However, this section would be revised to include IRFs and LTCHs.
Under the authority of sections 1861(m), 1861(o), and 1891 of the Act, the Secretary has established in regulations the requirements that a HHA must meet to participate in the Medicare program. Home health services are covered for qualifying elderly and people with disabilities who are entitled to benefits under the Hospital Insurance (Medicare Part A) and/or Supplementary Medical Insurance (Medicare Part B) programs. These services include skilled nursing care; physical, occupational, and speech therapy; medical social work; and home health aide services. Such services must be furnished by, or under arrangement with, an HHA that participates in the Medicare program and must be provided in the beneficiary's home.
On October 9, 2014, we published a proposed rule to reorganize the current CoPs for HHAs (79 FR 61163). The proposed requirements focused on the care delivered to patients by HHAs, reflected an interdisciplinary view of patient care, allowed HHAs greater flexibility in meeting quality care standards, and eliminated burdensome procedural requirements. The proposed changes were an integral part of our overall effort to achieve broad-based, measurable improvements in the quality of care furnished through the Medicare and Medicaid programs, while at the same time eliminating unnecessary procedural burdens on providers. The October 9, 2014 proposed rule included a proposal to update the discharge or transfer summary CoPs for HHAs. Specifically, we proposed to specify the content of a discharge or transfer summary, and we proposed specific timelines for sending the discharge or transfer summary information to the follow-up care providers. We proposed these changes as two separate sections located at § 484.60(e) and § 484.110(a)(6).
The IMPACT Act was signed on October 6, 2014 and requires the Secretary to publish regulations to modify CoPs and to develop interpretive guidance to require that HHAs take into account quality measures, resource use measures, and other measures to assist PAC providers, patients, and the families of patients with discharge planning, and to address the treatment preferences of patients and caregivers/support person(s) and the patient's goals of care. As part of our efforts to update the current discharge planning/discharge summary requirements for several providers, we have revised the previously proposed discharge or transfer summary requirements for HHAs in this proposed rule to incorporate the requirements of the IMPACT Act. Therefore, we are withdrawing the proposed discharge summary content requirements at § 484.60(e) that were published in the October 9, 2014 proposed rule and are proposing to add a new standard at § 484.58 for discharge planning for HHAs.
The current regulations at § 484.48 require HHAs to prepare a discharge summary that includes the patient's medical and health status at discharge, include the discharge summary in the patient's clinical record, and send the discharge summary to the attending physician upon request. We propose to update the discharge summary requirements by requiring that HHAs better prepare patients and their caregiver/support person(s) (or both) to be active participants in self-care and by implementing requirements that would improve patient transitions from one care environment to another, while maintaining continuity in the patient's plan of care. We therefore propose to add § 484.58, which would require that HHAs develop and implement an effective discharge planning process that focuses on preparing patients and caregivers/support person(s) to be active partners in post-discharge care, effective transition of the patient from HHA to post-HHA care, and the reduction of factors leading to preventable readmissions.
In this proposed rule, we further address the content and timing requirements for the discharge or transfer summary for HHAs. These proposed changes incorporate the requirements of the IMPACT Act.
We are soliciting comments on the timeline for HHA implementation of the following proposed discharge planning requirements.
We propose to establish a new standard, “Discharge planning process,” to require that the HHA's discharge planning process ensure that the discharge goals, preferences, and needs of each patient are identified and result in the development of a discharge plan for each patient. In addition, we propose to require that the HHA discharge planning process require the regular re-evaluation of patients to identify changes that require modification of the discharge plan, in accordance with the provisions for updating the patient assessment at current § 484.55. The discharge plan must be updated, as needed, to reflect these changes.
We remind HHAs that they must continue to abide by federal civil rights laws, including Title VI of the Civil Rights Act of 1964, the Americans with Disabilities Act, and section 504 of the Rehabilitation Act of 1973, when developing a discharge planning process. To this end, HHAs should take reasonable steps to provide individuals with limited English proficiency or other communication barriers, or physical, mental, cognitive, or intellectual disabilities meaningful access to the discharge planning process, as required under Title VI of the Civil Rights Act, as implemented under 45 CFR 80.3(b)(2). Discharge planning would be of little value to patients who cannot understand or appropriately follow the discharge plans discussed in this rule. Without appropriate language assistance or auxiliary aids and services, discharge planners would not be able to fully involve the patient and caregiver/support person in the development of the discharge plan. Furthermore, the discharge planner would not be fully aware of the patient's goals for discharge.
We propose to require that the physician responsible for the home health plan of care be involved in the ongoing process of establishing the discharge plan. We believe that physicians have an important role in the discharge planning process and we would expect that the HHA would be in communication with the physician during the discharge planning process. We also propose to require that the HHA consider the availability of caregivers/support persons for each patient, and the patient's or caregiver's capacity and capability to perform required care, as part of the identification of discharge needs. Furthermore, in order to incorporate patients and their families in the discharge planning process, we propose to require that the discharge plan address the patient's goals of care and treatment preferences.
For those patients that are transferred to another HHA or who are discharged to a SNF, IRF, or LTCH, we propose to require that the HHA assist patients and their caregivers in selecting a PAC provider by using and sharing data that includes, but is not limited to HHA, SNF, IRF, or LTCH data on quality measures and data on resource use measures. We would expect that the HHA would be available to discuss and answer patient's and their caregiver's questions about their post-discharge options and needs. Furthermore, the HHA must ensure that the PAC data on quality measures and data on resource use measures are relevant and applicable to the patient's goals of care and treatment preferences.
As required by the IMPACT Act, HHAs must take into account data on quality measures and resource use measures during the discharge planning process. In order to increase patient involvement in the discharge planning process and to incorporate patient preferences, we propose that HHAs provide data on quality measures and resource use measures to the patient and caregiver that are relevant to the patient's goals of care and treatment preferences. For example, the HHA could provide the aforementioned quality data on other PAC providers that are within the patient's desired geographic area. HHAs should then assist patients as they choose a high quality PAC provider by discussing and answering patient's and their caregiver's questions about their post-discharge options and needs. We would expect that HHAs would not make decisions on PAC services on behalf of patients and their families and caregivers and instead focus on person-centered care to increase patient participation in post-discharge care decision making. Person-centered care focuses on the patient as the locus of control, supported in making their own choices and having control over their daily lives.
We propose to require that the evaluation of the patient's discharge needs and discharge plan be documented and completed on a timely basis, based on the patient's goals, preferences, and needs, so that appropriate arrangements are made prior to discharge or transfer. This requirement would prevent the patient's discharge or transfer from being unduly delayed. In response to this requirement, we would expect that HHAs would establish more specific time frames for completing the evaluation and discharge plans based on their patient's needs and taking into consideration the patient's acuity level and time spent in home health care. We propose to require that the evaluation be included in the clinical record. We propose that the results of the evaluation be discussed with the patient or patient's representative. Furthermore, all relevant patient information available to or generated by the HHA itself must be incorporated into the discharge plan to facilitate its implementation and to avoid unnecessary delays in the patient's discharge or transfer.
We propose at § 484.58(b) to establish a new standard, “Discharge or transfer summary content,” to require that the HHA send necessary medical information to the receiving facility or health care practitioner. The information must include, at the minimum, the following:
• Demographic information, including but not limited to name, sex, date of birth, race, ethnicity, and preferred language;
• Contact information for the physician responsible for the home health plan of care;
• Advance directive, if applicable;
• Course of illness/treatment;
• Procedures;
• Diagnoses;
• Laboratory tests and the results of pertinent laboratory and other diagnostic testing;
• Consultation results;
• Functional status assessment;
• Psychosocial assessment, including cognitive status;
• Social supports;
• Behavioral health issues;
• Reconciliation of all discharge medications (both prescribed and over-the-counter);
• All known allergies, including medication allergies;
• Immunizations;
• Smoking status;
• Vital signs;
• Unique device identifier(s) for a patient's implantable device(s), if any;
• Recommendations, instructions, or precautions for ongoing care, as appropriate;
• Patient's goals and treatment preferences;
• The patient's current plan of care, including goals, instructions, and the latest physician orders; and
• Any other information necessary to ensure a safe and effective transition of care that supports the post-discharge goals for the patient.
As part of the medication reconciliation process, we encourage
We propose to include these elements in the discharge plan so that there is a clear and comprehensive summary for effective and efficient follow-up care planning and implementation as the patient transitions from HHA services to another appropriate health care setting.
We note that many of the aforementioned proposed medical information elements required to be sent to the receiving facility or health care practitioner may not be applicable to the patient. Therefore, we would expect HHAs to include this information with a “N/A” or other appropriate notation next to each data element that does not apply to the patient. We are soliciting comments on these proposed medical information requirements.
Sections 1820(e) and 1861 (mm) of the Act provide that critical access hospitals participating in Medicare and Medicaid meet certain specified requirements. We have implemented these provisions in 42 CFR part 485, subpart F, Conditions of Participation for CAHs.
Currently, there is no CAH discharge planning CoP. When CMS established requirements for the Essential Access Community Hospital (EACH) and Rural Primary Care Hospital (RPCH) providers that participated in the seven-state demonstration program in 1993, a discharge planning CoP was not developed then. Minimally, what was required under the former EACH/RPCH program was adopted for the new CAH program (see 62 FR 45966 through 46008, August 29, 1997). Currently the CoPs at § 485.631(c)(2)(ii) provide that a CAH must arrange for, or refer patients to, needed services that cannot be furnished at the CAH. CAHs are to ensure that adequate patient health records are maintained and transferred as required when patients are referred.
As previously noted, we recognize that there is significant benefit in improving the transfer and discharge requirements from an inpatient acute care facility, such as CAHs and hospitals, to another care environment. We believe that our proposed revisions would reduce the incidence of preventable and costly readmissions, which are often due to avoidable adverse events. In addition, under the IMPACT Act, CAHs must take into account quality measures, resource use measures, and other measures to assist PAC providers, patients, and the families of patients with discharge planning, also in light of the treatment preferences of patients and the patient's goals of care. Given these concerns and the IMPACT Act mandate, we are proposing new CAH discharge planning requirements. We are soliciting comments on the timeline for implementation of the following proposed CAH discharge planning requirements.
As discussed at length in section II.A. for hospitals, we maintain that discharge planning is an important component of successful transitions from the CAH setting. Due to the availability of fewer health care resources in a rural environment, it is important to keep CAH patients on the path to recovery by ensuring that the CAH effectively communicates the discharge plan to the patient and those who will be providing support to the patient post-discharge. It is important that patients discharged to home from CAHs have the necessary support and access to the appropriate resources to assist them with recovery.
While we propose that CAHs must take into consideration the patient's preferences and goals of care during the discharge planning process, as we describe in this proposed rule, we also acknowledge that patients located in rural areas that are discharged from CAHs may have limited post-acute care options.
Facilities that offer the most appropriate post-discharge care for a particular patient's recovery needs may be located outside of the patient's community. We therefore would expect CAHs to support patients as they choose an appropriate PAC setting that meets their preferences and goals of care, while informing the patient of the benefits of selecting the most appropriate setting for their post-discharge needs, even if the facility is outside of the patient's desired location.
Consistent communication between health care providers in all patient care settings would assist in better patient placement. However, this level of communication has not been consistently achieved among the numerous healthcare providers within communities across the country. Therefore, we believe that it is vital that rural providers collaborate with each other to optimize the use of post-discharge providers in rural areas.
We propose to develop requirements in the form of five standards at § 485.642. We would require that all inpatients and certain categories of outpatients be evaluated for their discharge needs and that the CAH develop a discharge plan. We also propose to require that the CAH provide specific discharge instructions, as appropriate, for all patients.
We propose that each CAH's discharge planning process must ensure that the discharge needs of each patient are identified and must result in the development of an appropriate discharge plan for each patient.
We remind CAHs that they must continue to abide by federal civil rights laws, including Title VI of the Civil Rights Act of 1964, the Americans with Disabilities Act, and section 504 of the Rehabilitation Act of 1973, when developing a discharge planning process. To this end, CAHs should take reasonable steps to provide individuals with limited English proficiency or physical, mental, cognitive, and intellectual disabilities meaningful access to the discharge planning process, as required under Title VI of the Civil Rights Act, as implemented at 45 CFR § 80.3(b)(2). Discharge planning would be of little value to patients who cannot understand or appropriately follow the discharge plans discussed in this rule. Without appropriate language assistance or auxiliary aids and services, discharge planners would not be able to fully involve the patient and caregiver/support person in the development of the discharge plan. Furthermore, the discharge planner would not be fully aware of the patient's goals for discharge.
Additionally, effective discharge planning will assist CAHs in accordance with the U.S. Supreme Court's holding in
We propose at § 485.642(a) to establish a new standard, “Design,” to require a CAH to have policies and
We propose at § 485.642(b) to establish a new standard, “Applicability”, to require the CAH's discharge planning process to identify the discharge needs of each patient and to develop an appropriate discharge plan. We note that, in accordance with section 1814(a)(8) of the Act and § 424.15, physicians must certify that the individual may reasonably be expected to be discharged or transferred to a hospital within 96 hours after admission to the CAH. We propose to require that the discharge planning process must apply to all inpatients, observation patients, patients undergoing surgery or same-day procedures where anesthesia or moderate sedation was used, emergency department patients identified as needing a discharge plan, and any other category of patients as recommended by the professional healthcare staff and approved by the governing body or responsible individual.
We propose at § 485.642(c), “Discharge planning process,” to require that CAHs implement a discharge planning process to begin identifying the anticipated post-discharge goals, preferences, and discharge needs of the patient and begin to develop an appropriate discharge plan for the patients identified in proposed § 485.642(b). We propose at § 485.642(c)(1) to require that a registered nurse, social worker, or other personnel qualified in accordance with the CAH's discharge planning policies must coordinate the discharge needs evaluation and development of the discharge plan. We also propose at § 485.642(c)(2) to require that the discharge planning process begin within 24 hours after admission or registration for each applicable patient identified under the proposed requirement at § 485.642(b), and is completed prior to discharge home or transfer to another facility, without unduly delaying the patient's discharge or transfer. If the patient's stay was less than 24 hours, the discharge needs would be identified prior to the patient's discharge home or transfer to another facility and without unnecessarily delaying the patient's discharge or transfer. We note that this policy does not pertain to emergency-level transfers for patients who require a higher level of care. However, while an emergency-level transfer would not need a discharge evaluation and plan, we would expect that the CAH would send necessary and pertinent information with the patient that is being transferred to another facility.
We propose at § 485.642(c)(3) that the CAH's discharge planning process must require regular reevaluation of patients to identify changes that require modification of the discharge plan. The discharge plan must be updated, as needed to reflect these changes. We propose at § 485.642(c)(4) that the practitioner responsible for the care of the patient must be involved in the ongoing process of establishing the discharge plan.
We propose at § 485.642(c)(5) that the CAH would be required to consider caregiver/support person availability and community based care, and the patient's or caregiver's/support person's capability to perform required care including self-care, follow-up care from a community based provider, care from a support person(s), care from and being discharged back to community-based health care providers and suppliers, or, in the case of a patient admitted from a long term care or other residential facility, care in that setting, as part of the identification of discharge needs. We also propose to require that CAHs must consider the availability of and access to non-health care services for patients, which may include home and physical environment modifications, transportation services, meal services, or household services, including housing for homeless patients. In addition, we encourage CAHs to consider the availability of supportive housing, as an alternative to homeless shelters that can facilitate continuity of care for patients in need of housing.
As part of the on-going discharge planning process, we propose in § 485.642(c)(5) that CAHs would need to identify areas where the patient or caregiver/support person(s) would need assistance and address those needs in the discharge plan. CAHs must consider the following in evaluating a patient's discharge needs including but not limited to:
• Admitting diagnosis or reason for registration;
• Relevant co-morbidities and past medical and surgical history;
• Anticipated ongoing care needs post-discharge;
• Readmission risk;
• Relevant psychosocial history;
• Communication needs, including language barriers, diminished eyesight and hearing, and self-reported literacy of the patient, patient's representative or caregiver/support person(s), as applicable;
• Patient's access to non-health care services; and community-based care providers; and
• Patient's goals and preferences.
We refer readers to Section II. A. 3 for a more detailed explanation of our expectations for this requirement and for additional resources.
During the evaluation of a patient's relevant co-morbidities and past medical and surgical history, we encourage practitioners to consult with their state's PDMP. In section II.A.3 of this proposed rule, we discuss the potential benefits as well as the challenges associated with the use of PDMPs. Given these potential benefits and challenges, we are soliciting comments on whether practitioners should be required to consult with their state's PDMP and review a patient's risk of non-medical use of controlled substances and substance use disorders as indicated by the PDMP report.
We propose at § 485.642 (c)(6) that the patient and caregiver/support person(s) would be involved in the development of the discharge plan, and informed of the final plan to prepare them for their post-CAH care.
We propose at § 485.642 (c)(7) to require that the patient's discharge plan address the patient's goals of care and treatment preferences. During the discharge planning process, we would expect that the appropriate staff would discuss the patient's post-acute care goals and treatment preferences with the patient, the patient's family or the caregiver (or both) and subsequently document these goals and preferences in the discharge plan. These goals and treatment preferences should be taken into account throughout the entire discharge planning process.
We propose at § 485.642(c)(8) to require that CAHs assist patients, their families, or their caregiver's/support persons in selecting a PAC provider by using and sharing data that includes, but is not limited to, HHA, SNF, IRF, or LTCH, data on quality measures and data on resource use measures. We would expect that the CAH would be available to discuss and answer patients and their caregiver's questions about their post-discharge options and needs. We would also expect the CAH to document in the medical record that the quality measures and resource use measures were shared with the patient and used to assist the patient during the discharge planning process.
Furthermore, the CAH would have to ensure that the PAC data on quality measures and data on resource use measures is relevant and applicable to the patient's goals of care and treatment preferences.
As required by the IMPACT Act, CAHs would have to take into account data on quality measures and data on resource use measures during the discharge planning process. In order to increase patient involvement in the discharge planning process and to emphasize patient preferences throughout the patient's course of treatment, CAHs should tailor the data on PAC provider quality measures and resource use measures to the patient's goals of care and treatment preferences. For example, the CAH could provide the aforementioned quality data on PAC providers that are within the patient's desired geographic area. In another instance, CAHs could provide quality data on HHAs based on the patient's preference to continue their care upon discharge to home. CAHs should assist patients as they choose a high quality PAC provider. However, we would expect that CAHs would not make decisions on PAC services on behalf of patients and their families and caregivers and instead focus on person-centered care to increase patient participation in post-discharge care decision making. Person-centered care focuses on the patient as the locus of control, supported in making their own choices and having control over their daily lives.
We propose at § 485.642(c)(9) to require that the evaluation of the patient's discharge needs and discharge plan would have to be documented and completed on a timely basis, based on the patient's goals, preferences, strengths, and needs. This will ensure that appropriate arrangements for post-CAH care are made before discharge. We believe that the CAH would establish more specific time frames for completing the evaluation and discharge plans based on the needs of their patients and their own operations. We propose to require that the evaluation be included in the medical record. The results of the evaluation must be discussed with the patient or patient's representative. All relevant patient information would have to be incorporated into the discharge plan to facilitate its implementation and to avoid unnecessary delays in the patient's discharge or transfer.
We also propose at § 485.642(c)(10) to require that the CAH assess its discharge planning process in accordance with the existing requirements at § 485.635(a)(4). The assessment must include ongoing, periodic review of a representative sample of discharge plans, including those patients who were readmitted within 30 days of a previous admission to ensure that they are responsive to patient discharge needs.
We propose at § 485.642(d)(1) to establish a new standard, “Discharge to home”, to require that discharge instructions be provided at the time of discharge to the patient, or the patient's caregiver/support person (or both). Also, if the patient is referred to a PAC provider or supplier, the discharge instructions must be provided to the PAC provider/supplier. Instruction on post-discharge care must include, but are not limited to, instruction on post-discharge care to be used by the patient or the caregiver/support person(s) in the patient's home, as identified in the discharge plan. We also propose at § 485.642(d)(2) to require that the instructions must include:
• Instruction on post-discharge care to be used by the patient or the caregiver/support person(s) in the patient's home, as identified in the discharge plan;
• Written information on warning signs and symptoms that may indicate the need to seek immediate medical attention;
• Prescriptions for medications that are required after discharge, including the name, indication, and dosage of each drug along with any significant risks and side effects of each drug as appropriate to the patient;
• Reconciliation of all discharge medications with the patient's pre-hospital admission/registration medications (both prescribed and over-the counter); and
• Written instructions regarding the patient's follow-up care, appointments, pending or planned diagnostic tests (or both), and pertinent contact information, including telephone numbers for practitioners involved in follow-up care.
As part of the medication reconciliation process, we encourage practitioners to consult with their state's PDMP. In section II.A.3 of this proposed rule, we discuss the potential benefits as well as the challenges associated with the use of PDMPs. Given these potential benefits and challenges, we are soliciting comments on whether, as part of the medication reconciliation process, practitioners should be required to consult with their state's PDMP to reconcile patient use of controlled substances as documented by the PDMP, even if the practitioner is not going to prescribe a controlled substance.
In addition to the patient receiving discharge instructions, it is important that the providers responsible for follow-up care with a patient (including the PCP or other practitioner) receive the necessary medical information to support continuity of care. We therefore propose at § 485.642(d)(3) to require that the CAH send the following information to the practitioner(s) responsible for follow up care, if the practitioner is known to the hospital and has been clearly identified:
• A copy of the discharge instructions and the discharge summary within 48 hours of the patient's discharge;
• Pending test results within 24 hours of their availability;
• All other necessary information as specified in proposed § 485.642(e)(2).
We remind CAHs to provide this information in a manner that complies with all applicable privacy and security regulations. We would expect that discharge instructions would be carefully designed and written in plain language and designed to be easily understood by the patient or the patient's caregiver/support person (or both). In addition, as a best practice, CAHs should confirm patient or the patient's caregiver/support person (or both) understanding of the discharge instructions. We recommend that CAHs consider the use of “teach-back” during discharge planning and upon providing discharge instructions to the patient. We refer readers to Section II. A. 3 for more resources on the “teach-back” method.
We propose at § 485.642(d)(4) to require CAHs to establish a post-discharge follow-up process. We believe that post-discharge follow-up can help ensure that patients comprehend and adhere to their discharge instruction and medication regimens and improve patient safety and satisfaction. We are proposing that CAHs have the flexibility to determine the appropriate time and mechanism of the follow up process to meet the needs of their patients. However, we note the importance of ensuring that CAHs follow-up, post-discharge, with their most vulnerable patients, including those with behavioral health conditions.
When a patient is transferred to another facility, that is another CAH, hospital, or a PAC provider, we propose at § 485.642(e) to require that the CAH send necessary medical information to the receiving facility at the time of transfer. The necessary medical information must include:
• Demographic information, including but not limited to name, sex, date of birth, race, ethnicity, and preferred language;
• Contact information for the practitioner responsible for the care of the patient as described at paragraph (b)(4) of this section and the patient's caregiver/support person(s);
• Advance directive, if applicable;
• Course of illness/treatment;
• Procedures;
• Diagnoses;
• Laboratory tests and the results of pertinent laboratory and other diagnostic testing;
• Consultation results;
• Functional status assessment;
• Psychosocial assessment, including cognitive status;
• Social supports;
• Behavioral health issues;
• Reconciliation of all discharge medications with the patient's pre-hospital admission/registration medications (both prescribed and over-the-counter);
• All known allergies; including medication allergies;
• Immunizations;
• Smoking status;
• Vital signs;
• Unique device identifier(s) for a patient's implantable device (s), if any;
• All special instructions or precautions for ongoing care; as appropriate;
• Patient's goals and treatment preferences; and
• Any other necessary information including a copy of the patient's discharge instructions, the discharge summary, and any other documentation as applicable, to ensure a safe and effective transition of care that supports the post-discharge goals for the patients.
We have discussed the rationale for these provisions in our discussion of the hospital provisions in section II.A. We are soliciting comments on these proposed medical information requirements.
Under the Paperwork Reduction Act of 1995 (PRA), we are required to provide 60-days notice in the
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
We are soliciting public comment on each of these issues for the following sections of this document that contain information collection requirements (ICRs):
Proposed § 482.43(b) would require that the discharge process applies to all inpatients and to all outpatients identified at § 482.43(b)(2) through (5). The current hospital CoPs at § 482.43(a) require hospitals to have a discharge planning process for patients that have been identified as likely to suffer adverse health consequences upon discharge if there is no adequate discharge planning and for patients who have discharge planning requested by themselves, someone else who is acting on their behalf, or their physician for actual discharge planning. Thus, since hospitals would shift from evaluating patients for potential discharge planning to actually providing a discharge plan for the vast majority of patients, hospitals would have to revise their policies and procedures to comply with the proposed requirements in this section.
It should be noted here that the proposed requirements at § 482.43(c)(8) and § 482.43(c)(9) (and all similar proposed requirements set out at proposed§ 485.642(c)(8) and (9) for CAHs and § 484.58(a)(6) and (7) for HHAs), which correspond to the requirements of the IMPACT Act, are exempted from the application of the PRA pursuant to section 1899B(m). Therefore, we are not required to estimate the public reporting burden for information collection requirements for these specific elements of the proposed rule in accordance with chapter 35 of title 44, United States Code. Nor are we required to undergo the specific public notice requirements of the PRA. Therefore, the estimates we provide in the Regulatory Impact Analysis (RIA) section of this proposed rule are essentially identical to those we would estimate under the PRA with respect to the elements set out in section 1899B of the Act. The public comment period on the proposed rule will give those affected an equivalent opportunity with the greater procedural benefits of the Administrative Procedure Act and Executive Order 12866. The exemption created by the IMPACT Act does not exempt the entirety of this proposed rule from PRA analysis. We further note that these proposed rules deal with the transmission of data on quality measures and data on resource use measures to patients that, are provided by the government to health care providers, not with the costs associated with its preparation. This rule does not deal with those costs.
Proposed § 482.43(d) would require hospitals to provide to all patients discharged to home, with or without a referral to a community-based service provider, discharge instructions that must include, at a minimum, those items identified in § 482.43(d)(2)(i) through (v). The current hospital CoPs do not contain any requirements for written discharge instructions under that heading. However, there are requirements for hospitals to provide certain information to patients. There is a requirement that “the patient and family members or interested persons must be counseled to prepare them for post-hospital care” (§ 482.43(c)(5)). When a hospital transfers or refers a patient, they must send the necessary medical information to the appropriate facility or outpatient service, as needed, for follow-up or ancillary care (§ 482.43(d)). When appropriate, there are requirements to provide lists of available providers, such as home health providers, to patients (§ 482.43(c)(6)). Thus, hospitals are already providing counseling to patients, their families, or other interested parties and are providing certain written information.
Whenever a patient is discharged or transferred to another facility, proposed § 482.43(e) would require hospitals to send necessary medical information to the receiving facility at the time of transfer. The necessary information that the hospital must send to the receiving facility includes all the items listed at proposed § 482.43(e)(2)(i) through (viii). The current hospital CoPs already require hospitals to send along with any patient that is transferred or referred to another facility the necessary medical information for the patient's follow-up or ancillary care to the appropriate facility (§ 482.43(d)). Overall, we believe that almost all of the proposed changes for hospitals constitute a clarification and restatement of the current requirements along with their interpretive guidelines, or simply state as requirements practices that most hospitals already follow for most patients. For example, we believe that
• Discharge plans for certain categories of outpatients, including, but not limited to patients receiving observation services, patients who are undergoing surgery or other same-day procedures where anesthesia or moderate sedation is used, emergency department patients who have been identified by a practitioner as needing a discharge plan, and any other category of outpatient as recommended by the medical staff, approved by the governing body and specified in the hospital's discharge planning policies and procedures; and
• The practitioner responsible for the care of the patient must be involved in the ongoing process of establishing the patient's goals of care and treatment preferences that inform the discharge plan, just as they are with other aspects of patient care during the hospitalization or outpatient visit.
In the estimates that follow in this section of the preamble and in the RIA, we estimate hourly costs. Using data from the Bureau of Labor Statistics, we have estimates of the national average hourly wage for all medical professions (for an explanation of these data see
With respect to the one-time costs of reviewing the newly stated requirements and of reviewing and in some cases modifying existing procedures to come into compliance, we estimate that this would require a physician, a registered nurse, and an administrator using the average hourly salaries as estimated in this proposed rule. We estimate that each person would spend 8 hours on this activity for a total of 24 hours per hospital at a cost of $3,424 ((8 hours × $67 for a registered nurse's hourly salary) + (8 hours × $174 for hospital CEO/administrator's hourly salary) + (8 hours × $187 for a physician's hourly salary)). The total burden hours are 117,600 (24 hours × 4,900 hospitals). For all hospitals to comply with this requirement, we estimate a total one-time cost of approximately $17 million (4,900 hospitals × $3,424). These time estimates are based on our best estimates of the time needed, on average, to review the final rule, compare its provisions with current practice at the hospital, and determine what changes would be needed and what instructions would need to be issued. For some hospitals, less time would be needed, and for some hospitals more, depending on current practices. These estimates are based on the judgments of CMS staff involved in the Survey and Certification process. We are unaware of any “time and motion” or similar studies that would provide a quantitative and reliable source for such estimates. We welcome comments and data that would help us improve the estimates.
For the requirements that exceed current practice or that are not universally followed, we use the following cost assumptions, based on the following hourly salaries: physician at $187; registered nurse at $67; Advanced Practice Registered Nurse (APRN) at $94; Physicians Assistant (PA) at $94; and healthcare social worker at $52. We would expect a registered nurse and healthcare social worker to carry out the duties of evaluating and planning for a patient's discharge while we would expect a physician, APRN, or PA to fulfill the practitioner involvement in the discharge plan requirement.
For the estimated cost of hospitals to provide additional discharge plans for the proposed new categories of outpatients, we started with the most recent data from the CDC on hospital outpatient and emergency department (ED) visits that showed approximately 126 million visits and 118 million visits (not including the 18.3 million emergency department visits that resulted in inpatient admissions), respectively, in 2011 (
Also according to the CDC, of the 34.7 million ambulatory surgery visits in 2006, 19.9 million occurred in hospitals (
We also have reason to believe that approximately 2 million outpatients receive observation care annually (
Using the number of 13 million outpatients, we estimate the amount of time that these discharge plans would take hospitals to develop and provide, including the cost of the additional proposed requirements previously noted in this proposed rule, that is, practitioner involvement in the development of the discharge plan. We believe that these additional requirements are already being performed for inpatients discharged, so we have not estimated any additional cost for these patients.
We believe that hospital APRNs and PAs would spend equal time as physicians, RNs, and healthcare social workers on discharge planning (5 minutes or 0.083 hours) on an equal number of outpatients. We averaged the salaries ($94 + $94 + $187 + $67 + $52)/5 = $99 per hour)). Thus, we estimate that complying with the proposed requirements of new outpatient discharge plans and practitioner involvement in those plans would cost approximately $107 million annually (13 million patients × 0.083 hours × $99 average hourly wage for APRNs, PAs, MDs/Doctors of Osteopathic Medicine (DOs), RNs, and healthcare social workers).
These estimates are based on the judgment of CMS staff as well as our experience with hospitals, both as CMS staff and as active hospital staff members. We welcome data and comments on these estimates.
We propose a new CoP at § 484.58 that would require HHAs to develop and implement an effective discharge planning process that focuses on preparing patients to be active partners in post-discharge care, effective transition of the patient from HHA to post-HHA care, and the reduction of factors leading to preventable readmissions.
We propose to establish a new standard at § 484.58(a), “Discharge planning process,” to require that the HHA's discharge planning process ensure that the discharge needs of each patient are identified and result in the development of a discharge plan for each patient. In addition, we propose to require that the HHA discharge planning process require the regular re-evaluation of patients to identify changes that require modification of the discharge plan. The discharge plan must be updated, as needed, to reflect these changes.
We propose to require that the physician responsible for the home health plan of care be involved in the ongoing process of establishing the discharge plan. We would expect that the HHA would be in communication with the physician during the discharge planning process. We also propose to require that as part of identifying the patient's discharge needs, the HHA consider the availability of caregivers/support persons for each patient whether through self-care, care from a support person(s), care from community-based health care providers and agencies, or care from a long-term care facility or other residential facility as part of the identification of discharge needs. The proposed requirement would also require the HHA to consider the patient's or caregiver's capacity and capability to provide the necessary care. Furthermore, in order to incorporate patients and their families in the discharge planning process, we propose to require that the discharge plan address the patient's goals of care and treatment preferences.
We propose to require that the evaluation of the patient's discharge needs and discharge plan must be documented, completed on a timely basis and be based on the patient's needs to ensure that the patient's discharge or transfer is not unduly delayed. We believe that HHAs would establish more specific time frames for completing the evaluation and discharge plans based on the needs of their patients and their own operations. We propose to require that the evaluation be included in the medical record. We propose that the results of the evaluation be discussed with the patient or patient's representative. Furthermore, all relevant patient information available to or generated by the HHA itself must be incorporated into the discharge plan to facilitate its implementation and to avoid unnecessary delays in the patient's discharge or transfer.
We base our HHA burden cost estimates on those discussed previously in this proposed rule for hospitals and CAHs with the relevant modifications for HHAs. First, HHAs would need to review their current policies and procedures and update them so that they comply with the requirements in proposed § 484.58(a). This would be a one-time burden on the HHA. We estimate that this would require a physician, a registered nurse, and an administrator using the average hourly salaries as estimated in this proposed rule. Note that we are estimating a lower average hourly salary for an HHA administrator than that previously estimated for a hospital CEO/administrator. We estimate that each person would spend 8 hours on this activity for a total of 24 hours per HHA at a cost of $2,816 ((8 hours × $67 for a RN's hourly salary) + (8 hours × $98 for an administrator's hourly salary) + (8 hours × $187 for a physician's hourly salary)). For all HHAs to comply with this requirement, we estimate a total one-time cost of approximately $34 million (11,930 HHAs × $2,816).
Furthermore, we believe that for a HHA to comply with the proposed provisions for this new standard the combined services of a physician, a registered nurse, and a social worker would be required. We use the following average hourly costs for a physician, a registered nurse, and a social worker respectively: $187, $67, and $52. We will also estimate the annual burden cost by analyzing the two new proposed standards as a combined burden in this proposed rule.
We propose at § 484.58(b) to establish another new standard, “Discharge or transfer summary content,” to require that the HHA send necessary medical information to the receiving facility or practitioner. The information must include:
• Demographic information, including but not limited to name, sex, date of birth, race, ethnicity, preferred language;
• Contact information for the physician responsible for the home ehealth plan of care;
• Advance directive, if applicable;
• Course of illness/treatment;
• Procedures;
• Diagnoses;
• Laboratory tests and the results of pertinent laboratory and other diagnostic testing;
• Consultation results;
• Functional status assessment;
• Psychosocial assessment, including cognitive status;
• Social supports;
• Behavioral health issues;
• Reconciliaton of all discharge medications (both prescribed and over-the counter);
• All known allergies, including medication allergies;
• Immunizations;
• Smoking status;
• Vital signs;
• Unique device identifier(s) for a patient's implantable device(s), if any;
• Recommendations, instructions, or precautions for ongoing care, as appropriate;
• Patient's goals of care and treatment preferences;
• The patient's current plan of care, including goals, instructions, and the latest physician orders; and
• Any other information necessary to ensure a safe and effective transition of care that supports the post-discharge goals for the patient.
We propose to include these elements in the discharge plan to provide the clear and comprehensive summary that is necessary for effective and efficient follow-up care planning and implementation as the patient transitions from HHA services to another appropriate health care setting.
To meet these two new proposed standards, it would take an HHA approximately 10 minutes (0.17 hours) per patient. Of that 10 minutes, 2 minutes (0.033 hours) would be covered by the physician, 3 minutes (0.05 hours) by the social worker, and the remaining 5 minutes (0.083 hours) by the RN. Thus, for the 11,930 HHAs, we estimate that complying with this requirement would require 594,000 burden hours (18 million patients × 0.033 hours) for physicians at an approximate cost of $111 million (594,000 burden hours × $187 average hourly salary); 900,000 burden hours (18 million patients × 0.05 hours) for social workers at an approximate cost of $47 million (900,000 burden hours × $52); and 1.5 million burden hours (18 million patients × 0.083 hours) for RNs at an approximate cost of $101 million (1.5 million burden hours × $67). The total annual cost for all HHAs would be approximately $259 million or $21,710 per HHA ($259,000,000/11,930 HHAs).
We also estimate that a HHA would spend 2.5 minutes per patient sending
Thus, we estimate compliance with this new CoP would cost HHAs a one-time cost of $34 million and approximately $283 million annually.
As previously indicated, these estimates are based on estimates for hospitals and CAHs with the relevant modifications for HHAs. We welcome data and comments on these estimates.
Currently, the CoPs at § 485.631(c)(2)(ii) provide that a CAH must arrange for, or refer patients to, needed services that cannot be furnished at the CAH. CAHs are to ensure that adequate patient health records are maintained and transferred as required when patients are referred.
As previously noted, we recognize that there is significant benefit in improving the transfer and discharge requirements from an inpatient acute care facility, such as CAHs and hospitals, to another care environment. We believe that our proposed revisions would reduce the incidence of preventable and costly readmissions, which are often due to avoidable adverse events. In addition, the IMPACT Act requires that hospitals and CAHs take into account quality, resource use data, and other data to assist PAC providers, patients, and the families of patients with discharge planning, while also addressing the treatment preferences of patients and the patient's goals of care. In light of these concerns and the requirements of the IMPACT Act, we are proposing new CAH discharge planning requirements.
We propose to develop requirements in the form of new CoPs with five standards at § 485.642. We would require that all patients be evaluated for their discharge needs and that the CAH develop a discharge plan. We also propose to require that the CAH provide specific discharge instructions, as appropriate, for all patients.
We also propose that each CAH's discharge planning process must ensure that the discharge needs of each patient are identified and must result in the development of an appropriate discharge plan for each patient. The current CAH CoP at § 485.635(d)(4) requires the CAH to develop a nursing care plan for each inpatient. The Interpretive Guidelines for § 485.635(d)(4) state that the plan includes planning the patient's care while in the CAH as well as planning for transfer to a hospital or a PAC facility or for discharge. Because the proposed CAH discharge planning requirements mirror those proposed for hospitals, we believe that CAHs, like hospitals, are essentially already performing many of the proposed requirements and estimate the burden to be minimal. We are assessing burden only for those areas that we believe that CAHs are not already doing under the current requirements of the nursing care plan at § 485.635(d)(4).
For proposed § 485.642(b), CAHs would need to shift from evaluating patients for potential discharge planning to actually doing discharge planning for the vast majority of patients. CAHs would have to revise their policies and procedures to comply with the proposed requirements in this section. First, CAHs would need to review their current policies and procedures and update them so that they comply with the requirements in proposed § 485.642 (b). This would be a one-time burden on the CAH. We estimate that this would require a physician, a registered nurse, and an administrator using the average hourly salaries as estimated in this proposed rule. Note that we are estimating a lower average hourly salary for a CAH administrator than that previously estimated for a hospital CEO/administrator. We estimate that each person would spend 16 hours on this activity for a total of 48 hours per CAH at a cost of $5,632 ((16 hours × $67 for a registered nurse's hourly salary) + (16 hours × $98 for an administrator's hourly salary) + (16 hours × $187 for a physician's hourly salary)). For all CAHs to comply with this requirement, we estimate a total one-time cost of approximately $7.5 million (1,328 CAHs × $5,632).
Similar to the proposed hospital requirements at § 482.43(c), proposed § 485.642(c) would require the CAH to implement a discharge planning process that identifies, within 24 hours after admission or registration in the CAH, the anticipated discharge needs for the patients identified under the proposed requirement at § 485.642(b), along with several provisions supporting the requirement proposed here.
Proposed § 485.642(c) would require that the CAH's discharge planning process promote early identification of the anticipated discharge needs of each patient, and development of an appropriate discharge plan for each patient for whom a discharge plan is applicable in accordance with proposed § 485.642(b). The identification of the patient's needs and the development of the discharge plan must comply with all of the requirements in § 485.642(c)(1) through (9). Proposed § 485.642(c)(4) specifically would require that “The licensed practitioner responsible for the care of the patient must be involved in the ongoing process of establishing the discharge plan.” The current CAH CoPs do not contain any similar requirement.
The burden associated with the requirement that a practitioner responsible for the patient's care be involved with the patient's discharge would include the time needed for a practitioner to assist in establishing the discharge plan. We believe that practitioner involvement in the establishing of the discharge plan would constitute a usual and customary business practice as defined in the implementing regulations of the PRA at 5 CFR 320.3(b)(2) and that CAHs are already doing this. The majority of CAHs that are deemed for participation in Medicare are accredited by The Joint Commission, which requires a CAH to have “the patient, the patient's family,
We believe that practitioners already are communicating with the staff that are caring for their patients and that the practitioner's involvement in the establishment of the discharge plan would occur during those usual interactions with the staff. We also expect that practitioners would review the discharge plan in conjunction with their review of the patient's CAH medical record. The practitioner would write the order to discharge the patient, as well as any prescriptions for medications and other orders for the patient. However, the proposed requirement envisions a more direct involvement in the ongoing process of establishing a discharge plan. Thus, we believe that practitioners would spend more time discussing the discharge plan with nurses and other CAH personnel.
The additional time the practitioner would be required to spend on
For proposed § 485.642(d), CAHs would be required to provide to all patients discharged to home, with or without a referral to a community-based service provider, discharge instructions that must include, at a minimum, those items identified in § 485.642(d)(2)(i) through (v). The current CAH CoPs do not contain any requirements for written discharge instructions.
The burden from the requirement to include discharge instructions in the discharge plan and document those instructions is the resources needed to develop the discharge plan and instructions. Based on our experience with the 1,328 CAHs, we believe they are already doing some form of discharge planning and providing discharge instructions for most of their patients. However, we do not believe they are providing this care for all of their patients. Of the approximately 600,000 patients discharged from CAHs each year, we estimate that about 60,000 additional patients would require discharge planning to comply with the requirement in this section. A nurse would probably perform this activity at an hourly salary of $67. This activity should require 30 minutes or 0.5 hours. Thus, for the 1,328 CAHs, we estimate that complying with this requirement would require 30,000 burden hours (60,000 patients × 0.5 hours) at a cost of $2 million (30,000 × $67 hourly nurse's salary). Approximately 5 minutes of this time would be spent consulting with either the MD/DO or the APRN/PA at a cost of $702,180 (60,000 patients × 0.083 hours × $141 (($187 + $94)/2), resulting in an approximate total of $2.7 million annually.
Whenever a patient is discharged or transferred to another facility, proposed § 485.642(e) would require CAHs to send necessary medical information to the receiving facility at the time of transfer. The necessary information that the CAH must send to the receiving facility includes all the items listed at proposed § 485.642(e)(2)(i) through (viii). Currently, the CoPs at § 485.631(c)(2)(ii) provide that a CAH must arrange for, or refer patients to, needed services that cannot be furnished at the CAH. CAHs are to ensure that adequate patient medical records are maintained and transferred as required when patients are referred. We believe that CAHs are already providing the information listed at proposed § 485.642(d)(2)(i) through (viii), except for (ii), which specifically requires an assessment of functional status, and (iv), which requires the reconciliation of all discharge medications with the patient's pre-CAH admission/registration medications (both prescribed and over-the counter), including known allergies. Although we believe all CAHs are ensuring that information about functional status and about known allergies is being forwarded, we are not certain that they are all reconciling the pre-CAH medications with the discharge medications. Therefore, we will analyze a burden for this reconciliation. Since both proposed § 485.642(d)(2)(iv) and § 482.642(e)(2)(iv) require medication reconciliation, we will assess the burden for both of these subsections together.
The burden for reconciling pre-admission/registration medications (both prescribed and over-the-counter) with the discharge medications would be the resources required to review the patient's chart to identify all of a patient's pre-admission medications and compare them to the discharge medications. Typically, a physician, nurse, or other healthcare provider would do a history for each patient upon admission. A nurse would usually then compare the medications the patient was taking pre-admission to those ordered by the practitioner and reconcile them. If there were any discrepancies that the nurse questioned, he or she would then consult with the practitioner caring for the patient. When a patient is ready for discharge, the nurse would then compare the pre-admission medications with the discharge medications. If he or she questioned any changes, the nurse would need to question the prescribing practitioner about the discrepancy.
Based on our experience with CAHs, we believe that a nurse would review the patient's chart and reconcile the pre-admission and discharge medications. The time required for this reconciliation would vary greatly depending upon the number of medications a patient was taking, both pre-admission and at discharge, and the number of changes or discrepancies that the nurse questioned. We estimate that this activity would require an average of 3 minutes for each patient or 0.05 hours. We estimate that there are about 600,000 discharges annually that would require this medication reconciliation. Nurses earn an average hourly salary of $67. Thus, complying with this requirement would require an estimated 30,000 burden hours (600,000 discharges × 0.05 hours per patient) across all CAHs annually at a cost of $2 million (30,000 burden hours × $67).
We welcome comments on these estimates and any available data that we could use to improve our estimates. Based on the previously stated estimates, to comply with all of the requirements in proposed § 485.642, we estimate a total one-time cost of $7 million and a total annual cost of approximately $6 million for CAHs nationwide.
If you comment on these information collection and recordkeeping requirements, please do either of the following:
1. Submit your comments electronically as specified in the
2. Submit your comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: CMS Desk Officer, CMS-3317-P, Fax: (202) 395-6974; or, Email:
Discharge planning is an important component of successful transitions from acute care hospitals and PAC settings, as we have previously discussed. It is universally agreed to be an essential function of hospitals. The transition may be to a patient's home (with or without PAC services), skilled nursing facility or nursing home, long term care hospital, rehabilitation facility, assisted living center, hospice, or a variety of other settings. The location to which a patient may be discharged should be based on the patient's clinical care requirements, available support network, and patient and caregiver treatment preferences and goals of care.
Although the current hospital discharge planning process meets the needs of many inpatients released from the acute care setting, some discharges result in less-than optimal outcomes for patients including complications and adverse events that lead to hospital readmissions. Reducing avoidable hospital readmissions and patient complications presents an opportunity for improving the quality and safety of patient care, while potentially reducing health care costs. Executive Order 13563 expressly states, in its section on retrospective review, that “agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.”
We believe that the provisions of the IMPACT Act that require hospitals, CAHs, and PAC providers take into account quality measures and resource use and other measures to assist patients and their families during the discharge planning process will encourage patients and their families to become active participants in the planning of their transition from the hospital to the PAC setting (or between PAC settings). This requirement will allow patients and their families' access to information that will help them to make informed decisions about their post-acute care, while addressing their goals of care and treatment preferences. Patients and their families that are well informed of their choices of high-quality PAC providers may reduce their chances of being re-hospitalized.
Equally importantly, the necessity of meeting this new legislative requirement provides an opportunity to meet the requirement for retrospective review of an important set of regulatory requirements that have not been systematically reviewed in decades. Finally, recent findings about health care delivery problems related to hospitalization, including discharge and readmissions, have indicated that major problems exist. For example, the Institute of Medicine study
We have examined the impacts of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2).
Executive Orders 12866 and 13563 direct agencies to assess all costs and
A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). We estimate that this rulemaking is “economically significant” as measured by the $100 million threshold, and hence also a major rule under the Congressional Review Act. Accordingly, we have prepared a RIA that, taken together with the ICR section and other sections of the preamble, presents our best estimates of the effects costs and benefits of the rulemaking.
The Congressional Review Act, 5 U.S.C. 801
This proposed rule would create both one-time and annual costs for CAHs and HHAs. The financial costs are summarized in the table that follows. We welcome public comments on all of our burden assumptions and estimates.
We have accounted for the regulatory impact of these proposed changes through the analysis of costs contained in the ICR sections previously mentioned in this proposed rule. We believe these estimates encompass all additional burden on hospitals, CAHs and HHAs. Any burden associated with the proposed changes to the CoPs not accounted for in the ICR sections or in the RIA section was omitted because we believe it would constitute a usual and customary business practice and would not be subject to the PRA in accordance with 5 CFR 1320.3(b)(2). Nor would it constitute an added cost for purposes of RIA estimates if we added a regulatory requirement that reflected existing practices and workload. We note that we do not estimate costs for the newly added requirement to present quality and cost information to those hospital patients who face a decision on selection of post-discharge providers. In our view, hospitals already counsel patients on these choices, and the availability of written quality information will not add significantly to the time involved, and may in some cases reduce it (the information, of course, would only be presented as pertinent to the particular decisions facing particular patients). Indeed, all providers affected by this rule already have access to quality information from the CMS Web sites Hospital Compare, Nursing Home Compare, and Home Health Compare, as well as other public and private Web sites and their own knowledge of local providers, and presumably many or most use this information as appropriate to counsel patients. If readers believe we have omitted some category of cost by incorrectly assuming it is already being performed, or to have unnecessarily presented cost estimates for functions that are already being performed, we would welcome comments on these areas of the proposed rule.
Our estimates of the effects of this regulation are subject to significant uncertainty. While the Department of Health and Human Services is confident that these proposals will provide flexibilities to facilities that will minimize cost increases, there are uncertainties about the magnitude of the discussed effects. However, we have based our overall assumptions and best estimates on our ongoing experiences with hospitals, CAHs, and HHAs in these matters. We welcome public comments on these assumptions and estimates.
In addition, as we previously explained, there may be significant additional health benefits, such as the reduction in patient readmissions after discharges and the reduction of other post-discharge patient complications.
The RFA requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, we estimate that the great majority of the providers that would be affected by our
As shown in table 1, we estimate that the recurring costs of this proposed rule would cost affected entities approximately $396 million a year (out of the total first year cost of $454 million a year). A majority of these costs would impact HHAs. While this is a large amount in total, the average annual costs per affected HHA are only about $24,000 per year ($283 million in total for all HHAs/11,930 HHAs). Although the overall magnitude of the paperwork, staffing, and related costs to HHAs under this rule is economically significant, these costs are about 1 percent of total HHA costs. According to the 2014 Annual Report of the Medicare trustees, the total annual spending on HHA services from Medicare Parts A and B, not including private payments, was $18.4 billion in 2013. Our estimated annual cost is 1.5 percent of that total ($283 million/$l8.4 billion), and as a per patient cost would be approximately that same percentage (less, if private spending were included) for all HHAs. Accordingly, we have concluded that the costs of this proposed rule will not reach 3 percent of revenues, the threshold used by HHS to determine whether a proposed rule is likely to create a negative “significant impact on a substantial number of small entities,” and thereby trigger the requirement for an initial Regulatory Flexibility Analysis.
Effects on hospitals are far smaller, and estimated to be about $107 million annually in recurring costs. Total annual expenses for all hospitals are about $859 billion a year.
Total national CAH revenues from Medicare are approximately $9 billion a year, or an average of about $7 million annually per hospital ($9 billion/1,328). We believe that all or almost all CAHs meet the size threshold for small entities. We estimate that this proposed rule would impose costs of approximately $6 million nationally, or about $4,600 per hospital (revenue data from MEDPAC report “Critical Access Hospitals Payment System” at
We note that quite apart from the gross costs of compliance being a small fraction of revenues or costs of affected entities, net costs will be far smaller. Payment for hospital inpatient services for Medicare beneficiaries is paid primarily according to Medicare severity diagnosis-related groups (MS-DRGs), and MS-DRGs for hospital procedures are periodically revised to reflect the latest estimates of costs from hospitals themselves, as well as from other sources. Hence, absent offsetting effects from other payment changes, and depending on hospitals' success in controlling overall costs, some portion of these costs will be recovered from Medicare. Moreover, hospitals can and do periodically revise their charges to private insurance carriers (subject in part to negotiations over rates) and for the approximately half of all patients who are “private pay” cost increases can be partially offset in that way. As for CAHs, they are largely paid on a cost basis for their Medicare patients, and will presumably be able to recoup additional costs through periodic adjustments to public and private payment rates. Finally, HHAs also obtain periodic changes in payment rates from both public and private payers. In all three cases, we have no way to predict precise future pathways or exact timing however, we believe that most of the recurring costs (and almost all in the case of CAHs) will be recovered through payments from third party payers, public and private.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a metropolitan statistical area and has fewer than 100 beds. For the preceding reasons, we have determined that this proposed rule does not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2015, that is approximately $157 million. This proposed rule would require HHA spending in excess of that threshold, at least in early years before subsequent payment rate increases may take increased costs into account. Mandated spending for CAHs, in contrast, is largely reimbursed on a cost basis and would not count as an unfunded mandate. This RIA and the preamble as presented together here in this proposed rule meet the UMRA requirements for analysis.
Executive Order 13132 establishes certain requirements that an agency must meet when it issues a proposed rule (and subsequent final rule) that would impose substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. This rule would not have a substantial direct effect on state or local governments, preempt states, or otherwise have a Federalism implication.
Patients in all three settings are the major beneficiaries of this rule. Research cited earlier in this preamble strongly suggests that there would be reductions in morbidity and mortality from improving services to these patients through improved discharge planning. We are unable to quantify either the volume or dollar value of expected benefits. We are not aware of reliable empirical data on the benefits of improved discharge planning. In addition, there are multiple initiatives affecting the same patients (for example, the Hospital Readmissions Reduction Program, the Medicare EHR Incentive Program, and the Accountable Care Organizations under the Medicare Shared Savings Program). This makes it challenging to sort out the separable benefits of this proposed rule.
Nonetheless, the number of patients potentially benefitting is significant. There are roughly 35 million inpatient discharges from hospitals annually. In addition, there are approximately 32 million patients newly affected by substantially modified discharge planning requirements (this figure includes an additional 13 million annual hospital outpatient discharges, 18 million annual HHA patient discharges, and 600,000 annual CAH discharges). If mortality or serious morbidity were prevented for even a fraction of 1 percent of these nearly 50 million patients, potentially tens or hundreds of thousands of persons would substantially benefit.
There are existing requirements in place for discharge planning and for reducing adverse events such as hospital readmissions, both in regulations governing patient care and in payment regulations, but little or no data on the effectiveness of these requirements compared to the normal effects of good medical practice. The changes that would be implemented by this proposed rule are an additional overlay on top of existing practices and requirements. It is challenging to disentangle all these overlapping factors. Therefore, existing data demonstrate that even small improvements can have effects as large as those previously suggested in this proposed rule. For example, one meta-analysis showed that transitional care that promotes the safe and timely transfer of patients from hospital to home has been proven to be highly effective in reducing readmissions.
As we previously stated in this proposed rule, some of these provisions are mandated under the IMPACT Act, therefore, no major alternatives were considered. For the other proposed provisions, we considered not making these changes. We did not consider additional requirements that we did not believe would result in substantial benefits at reasonable cost. For example, we considered requiring specific post-discharge follow-up procedures, but concluded that the range of procedures is so great (including, for example, such very low cost procedures as automatically generated text or email reminders about medication compliance, and such high cost procedures as home visits by nurses), and the range of patient situations so wide (including in many cases no likely benefit from follow-up and in others no efficient way to predict likely benefits), that no reasonable or practicable requirement could be devised at this time. Of course, we encourage providers to use follow-up procedures they find cost-effective for particular categories of patients. We welcome comments and data on these or other follow-up alternatives that may have been shown to be cost-effective in discharge planning, and on what form and with what enforcement standards a mandatory requirement might reasonably use.
We also considered proposing mandatory use of the approximately 50 state-run PDMPs by providers regulated under this proposed rule (each state has its own version and operational, security, access, and other details vary by state). Where hospitals in particular states voluntarily use such programs based on their own determination of utility, we strongly encourage use of such systems. PDMPs have proven useful for law enforcement purposes and, in some states, for pharmacy use. There are, however, uncertainties as to use in hospital settings. As one recent study stated, “whether mandates should become a best practice depends on proving their [PDMP] feasibility and benefits.”
For all provisions, we attempted to minimize unnecessarily prescriptive methods or procedures, and to avoid any unnecessarily costly requirements. We welcome comments on whether we properly selected the best provisions for change and on whether there are alternatives or improvements to the proposed provisions that would increase benefits at reasonable cost or reduce costs without compromising important benefits.
If these requirements are finalized, CMS will update the interpretive guidance, update the survey process, and provide training. In order to implement these new standards, we anticipate initial federal startup costs between $8 to $10 million. The continuing costs (survey process-recertifications, enforcement, appeals, AO) are estimated $4,461,131 and will continue annually, thereafter. CMS will continue to examine and seeks comment on the potential impacts to both Medicare and Medicaid.
As required by OMB Circular A-4 (available at
This proposed rule was reviewed by the Office of Management and Budget.
Because of the large number of public comments we normally receive on
Grant Programs—health, Hospitals, Medicaid, Medicare, Reporting and recordkeeping requirements.
Health facilities, Health professions, Medicare, Reporting and recordkeeping requirements.
Grant programs—health, Health facilities, Medicaid, Medicare, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare and Medicaid Services proposes to amend 42 CFR chapter IV as set forth below:
Secs. 1102, 1871, 1881, 1899B of the Social Security Act (42 U.S.C. 1302, 1395hh, 1395rr, and 1395lll) unless otherwise noted.
The hospital must develop and implement an effective discharge planning process that focuses on the patient's goals and preferences and prepares patients and their caregivers/support person(s), to be active partners in post-discharge care, planning for post-discharge care that is consistent with the patient's goals for care and treatment preferences, effective transition of the patient from hospital to post-discharge care, and the reduction of factors leading to preventable hospital readmissions.
(a)
(1) Be developed with input from the hospital's medical staff, nursing leadership as well as other relevant departments;
(2) Be reviewed and approved by the governing body; and
(3) Be specified in writing.
(b)
(1) All inpatients;
(2) Outpatients receiving observation services;
(3) Outpatients undergoing surgery or other same day procedures for which anesthesia or moderate sedation are used;
(4) Emergency department patients identified in accordance with the hospital's discharge planning policies and procedures by the emergency department practitioner responsible for the care of the patient as needing a discharge plan; and
(5) Any other category of outpatients as recommended by the medical staff and specified in the hospital's discharge planning policies and procedures approved by the governing body.
(c)
(1) A registered nurse, social worker, or other personnel qualified in accordance with the hospital's discharge planning policies must coordinate the discharge needs evaluation and development of the discharge plan.
(2) The hospital must begin to identify the anticipated discharge needs for each applicable patient within 24 hours after admission or registration, and the discharge planning process is completed prior to discharge home or transfer to another facility and without unduly delaying the patient's discharge or transfer. If the patient's stay is less than 24 hours, the discharge needs for each applicable patient must be identified and the discharge planning process completed prior to discharge home or transfer to another facility and without unnecessarily delaying the patient's discharge or transfer.
(3) The hospital's discharge planning process must require regular re-evaluation of the patient's condition to identify changes that require modification of the discharge plan. The discharge plan must be updated, as needed, to reflect these changes.
(4) The practitioner responsible for the care of the patient must be involved in the ongoing process of establishing the patient's goals of care and treatment preferences that inform the discharge plan.
(5) The hospital must consider caregiver/support person and community based care availability and the patient's or caregiver's/support person's capability to perform required care including self-care, care from a support person(s), follow-up care from a community based provider, care from post-acute care practitioners and facilities, or, in the case of a patient
(i) Admitting diagnosis or reason for registration;
(ii) Relevant co-morbidities and past medical and surgical history;
(iii) Anticipated ongoing care needs post-discharge;
(iv) Readmission risk;
(v) Relevant psychosocial history;
(vi) Communication needs, including language barriers, diminished eyesight and hearing, and self-reported literacy of the patient, patient's representative or caregiver/support person(s), as applicable;
(vii) Patient's access to non-health care services and community based care providers; and
(viii) Patient's goals and treatment preferences.
(6) The patient and caregiver/support person(s) must be involved in the development of the discharge plan, and informed of the final plan to prepare them for post-hospital care.
(7) The discharge plan must address the patient's goals of care and treatment preferences.
(8) The hospital must assist the patients, their families, or the patient's representative in selecting a post-acute care provider by using and sharing data that includes but is not limited to HHA, SNF, IRF, or LTCH data on quality measures and data on resource use measures. The hospital must ensure that the post-acute care data on quality measures and data on resource use measures is relevant and applicable to the patient's goals of care and treatment preferences.
(9) The evaluation of the patient's discharge needs and the resulting discharge plan must be documented and completed on a timely basis, based on the patient's goals, preferences, strengths, and needs, so that appropriate arrangements for post-hospital care are made before discharge to avoid unnecessary delays in discharge.
(i) The discharge plan must be included in the patient's medical record. The results of the evaluation must be discussed with the patient or patient's representative.
(ii) All relevant patient information must be incorporated into the discharge plan to facilitate its implementation and to avoid unnecessary delays in the patient's discharge or transfer.
(10) The hospital must assess its discharge planning process on a regular basis. The assessment must include ongoing, periodic review of a representative sample of discharge plans, including those patients who were readmitted within 30 days of a previous admission, to ensure that the plans are responsive to patient post-discharge needs.
(d)
(i) The patient and/or the patient's caregiver/support person(s), and
(ii) The post-acute care provider or supplier, if the patient is referred to post-acute care services.
(2) The discharge instructions must include, but are not limited to, the following:
(i) Instruction on post-hospital care to be used by the patient or the caregiver/support person(s) in the patient's home, as identified in the discharge plan;
(ii) Written information on warning signs and symptoms that may indicate the need to seek immediate medical attention. This must include written instructions on what the patient or the caregiver/support person(s) should do and who they should contact if these warning signs or symptoms present;
(iii) Prescriptions and over-the counter medications that are required after discharge, including the name, indication, and dosage of each drug, along with any significant risks and side effects of each drug as appropriate to the patient;
(iv) Reconciliation of all discharge medications with the patient's pre-hospital admission/registration medications (both prescribed and over-the-counter); and
(v) Written instructions in paper and/or electronic format regarding the patient's follow-up care, appointments, pending and/or planned diagnostic tests, and pertinent contact information, including telephone numbers, for any practitioners involved in follow-up care or for any providers/suppliers to whom the patient has been referred for follow-up care.
(3) The hospital must send the following information to the practitioner(s) responsible for follow up care, if the practitioner is known and has been clearly identified:
(i) A copy of the discharge instructions and the discharge summary within 48 hours of the patient's discharge;
(ii) Pending test results within 24 hours of their availability;
(iii) All other necessary information as specified in § 482.43(e)(2).
(4) The hospital must establish a post-discharge follow-up process.
(e)
(2) Necessary medical information must include:
(i) Demographic information, including but not limited to name, sex, date of birth, race, ethnicity, preferred language;
(ii) Contact information for the practitioner responsible for the care of the patient, as described at paragraph (b)(4) of this section, and the patient's caregiver(s)/support person(s), if applicable;
(iii) Advance directive, if applicable;
(iv) Course of illness/treatment;
(v) Procedures;
(vi) Diagnoses;
(vii) Laboratory tests and the results of pertinent laboratory and other diagnostic testing;
(viii) Consultation results;
(ix) Functional status assessment;
(x) Psychosocial assessment, including cognitive status;
(xi) Social supports;
(xii) Behavioral health issues;
(xiii) Reconciliation of all discharge medications with the patient's pre-hospital admission/registration medications (both prescribed and over-the counter);
(xiv) All known allergies, including medication allergies;
(xv) Immunizations;
(xvi) Smoking status;
(xvii) Vital signs;
(xviii) Unique device identifier(s) for a patient's implantable device(s), if any;
(xix) All special instructions or precautions for ongoing care, as appropriate;
(xx) Patient's goals and treatment preferences; and
(xxi) All other necessary information including a copy of the patient's discharge instructions, the discharge summary and any other documentation as applicable, to ensure a safe and effective transition of care that supports the post-discharge goals for the patient.
(f)
(1) The hospital must include in the discharge plan a list of HHAs, SNFs, IRFs, or LTCHs that are available to the patient, that are participating in the Medicare program, and that serve the geographic area (as defined by the HHA) in which the patient resides, or in the
(i) This list must only be presented to patients for whom home health care post-hospital extended care services, SNF, IRF, or LTCH services are indicated and appropriate as determined by the discharge planning evaluation.
(ii) For patients enrolled in managed care organizations, the hospital must make the patient aware of the need to verify with their managed care organization which practitioners, providers or certified suppliers are in the managed care organization's network. If the hospital has information on which practitioners, providers or certified supplies are in the network of the patient's managed care organization, it must share this with the patient or the patient's representative.
(iii) The hospital must document in the patient's medical record that the list was presented to the patient or to the patient's representative.
(2) The hospital, as part of the discharge planning process, must inform the patient or the patient's representative of their freedom to choose among participating Medicare providers and suppliers of post-discharge services and must, when possible, respect the patient's or the patient's representative's goals of care and treatment preferences, as well as other preferences they express. The hospital must not specify or otherwise limit the qualified providers or suppliers that are available to the patient.
(3) The discharge plan must identify any HHA or SNF to which the patient is referred in which the hospital has a disclosable financial interest, as specified by the Secretary, and any HHA or SNF that has a disclosable financial interest in a hospital under Medicare. Financial interests that are disclosable under Medicare are determined in accordance with the provisions of part 420, subpart C, of this chapter.
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395(hh)), unless otherwise indicated.
A Home Health Agency (HHA) must develop and implement an effective discharge planning process that focuses on preparing patients to be active partners in post-discharge care, effective transition of the patient from HHA to post-HHA care, and the reduction of factors leading to preventable readmissions.
(a)
(1) The discharge planning process must require regular re-evaluation of patients to identify changes that require modification of the discharge plan, in accordance with the provisions for updating the patient assessment at § 484.55. The discharge plan must be updated, as needed, to reflect these changes.
(2) The physician responsible for the home health plan of care must be involved in the ongoing process of establishing the discharge plan.
(3) The HHA must consider caregiver/support person availability, and the patient's or caregiver's capability to perform required care, as part of the identification of discharge needs.
(4) The patient and caregiver(s) must be involved in the development of the discharge plan, and informed of the final plan.
(5) The discharge plan must address the patient's goals of care and treatment preferences.
(6) For patients who are transferred to another HHA or who are discharged to a SNF, IRF, or LTCH, the HHA must assist patients and their caregivers in selecting a post-acute care provider by using and sharing data that includes, but is not limited to HHA, SNF, IRF, or LTCH data on quality measures and data on resource use measures. The HHA must ensure that the post-acute care data on quality measures and data on resource use measures is relevant and applicable to the patient's goals of care and treatment preferences.
(7) The evaluation of the patient's discharge needs and discharge plan must be documented and completed on a timely basis, based on the patient's goals, preferences, and needs. The discharge plan must be included in the clinical record. The results of the evaluation must be discussed with the patient or patient's representative. All relevant patient information must be incorporated into the discharge plan to facilitate its implementation and to avoid unnecessary delays in the patient's discharge or transfer.
(b)
(1) Demographic information, including but not limited to name, sex, date of birth, race, ethnicity, preferred language;
(2) Contact information for the physician responsible for the home health plan of care;
(3) Advance directive, if applicable;
(4) Course of illness/treatment;
(5) Procedures;
(6) Diagnoses;
(7) Laboratory tests and the results of pertinent laboratory and other diagnostic testing;
(8) Consultation results;
(9) Functional status assessment;
(10) Psychosocial assessment, including cognitive status;
(11) Social supports;
(12) Behavioral health issues;
(13) Reconciliation of all discharge medications (both prescribed and over-the-counter);
(14) All known allergies, including medication allergies;
(15) Immunizations;
(16) Smoking status;
(17) Vital Signs;
(18) Unique device identifier(s) for a patient's implantable device(s), if any;
(19) Recommendations, instructions, or precautions for ongoing care, as appropriate;
(20) Patient's goals of care and treatment preferences;
(21) The patient's current plan of care, including goals, instructions, and the latest physician orders; and
(22) Any other information necessary to ensure a safe and effective transition of care that supports the post-discharge goals for the patient.
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395(hh)).
(a) * * *
(3) * * *
(viii) Discharge planning policies and procedures, in accordance with the requirements of § 485.642.
A Critical Access Hospital (CAH) must develop and implement an effective discharge planning process that focuses on preparing patients to participate in post-discharge care, planning for post-discharge care that is consistent with the patient's goals for care and treatment preferences, effective transition of the patient from the CAH to post-discharge care, and the reduction of factors leading to preventable readmissions to a CAH or a hospital.
(a)
(1) Be developed with input from the CAH's professional healthcare staff, nursing leadership as well as other relevant departments;
(2) Be reviewed and approved by the governing body or responsible individual; and
(3) Be specified in writing.
(b)
(1) All inpatients;
(2) Outpatients receiving observation services;
(3) Outpatients undergoing surgery or other same day procedures for which anesthesia or moderate sedation are used;
(4) Emergency department patients identified in accordance with the CAH's discharge planning policies and procedures by the emergency department practitioner responsible for the care of the patient as needing a discharge plan; and
(5) Any other category of outpatients as recommended by the medical staff and specified in the CAH's discharge planning policies and procedures approved by the governing body or responsible individual.
(c)
(1) A registered nurse, social worker, or other personnel qualified in accordance with the CAH's discharge planning policies must coordinate the discharge needs evaluation and development of the discharge plan.
(2) The CAH must begin to identify the anticipated goals, preferences, and discharge needs for each applicable patient within 24 hours after admission or registration and the discharge planning process is completed prior to discharge home or transfer to another facility and without unduly delaying the patient's discharge or transfer. If the patient's stay is less than 24 hours, the discharge needs for each applicable patient must be identified and the discharge planning process completed prior to discharge home or transfer to another facility and without unnecessarily delaying the patient's discharge or transfer.
(3) The CAH's discharge planning process must require regular re-evaluation of patients to identify changes that require modification of the discharge plan. The discharge plan must be updated, as needed, to reflect these changes.
(4) The practitioner responsible for the care of the patient must be involved in the ongoing process of establishing the patient's goals of care and treatment preferences that inform the discharge plan.
(5) The CAH must consider caregiver/support person and community based care availability, and the patient's or caregiver's/support person's capability to perform required care including self-care, care from a support person(s), follow-up care from a community based provider, care from post-acute care facilities, or, in the case of a patient admitted from a long term care or other residential facility, care in that setting, as part of the identification of discharge needs. The CAH must consider the following in evaluating a patient's discharge needs, including but not limited to:
(i) Admitting diagnosis or reason for registration;
(ii) Relevant co-morbidities and past medical and surgical history;
(iii) Anticipated ongoing care needs post-discharge;
(iv) Readmission risk;
(v) Relevant psychosocial history;
(vi) Communication needs, including language barriers, diminished eyesight and hearing, and self-reported literacy of the patient, patient's representative or caregiver/support person(s), as applicable;
(vii) Patient's access to non-health care services and community based providers; and
(viii) Patient's goals and preferences.
(6) The patient and caregiver/support person(s) must be involved in the development of the discharge plan and informed of the final plan to prepare them for post-CAH care.
(7) The discharge plan must address the patient's goals of care and treatment preferences.
(8) The CAH must assist patients, their families, or their caregivers/support persons in selecting a post-acute care provider by using and sharing data that includes but is not limited to HHA, SNF, IRF, or LTCH data on quality measures and data on resource use measures. The CAH must ensure that the post-acute care data on quality measures and data on resource use measures furnished to the patient is specific to the post-acute care setting(s) and relevant and applicable to the patient's goals of care and treatment preferences.
(9) The evaluation of the patient's discharge needs and the resulting discharge plan must be documented and completed on a timely basis, based on the patient's goals, preferences, strengths, and needs, so that appropriate arrangements for post-CAH care are made before discharge to avoid unnecessary delays in discharge.
(i) The discharge plan must be included in the patient's medical record. The results of the evaluation must be discussed with the patient or patient's representative.
(ii) All relevant patient information must be incorporated into the discharge plan to facilitate its implementation and to avoid unnecessary delays in the patient's discharge or transfer.
(10) The CAH must assess its discharge planning process in accordance with the requirements of § 485.635(a)(4). The assessment must include ongoing, periodic review of a representative sample of discharge plans, including those patients who were readmitted within 30 days of a previous admission to ensure that the plans are responsive to patient post-discharge needs.
(d)
(i) The patient and/or the patient's caregiver/support person(s), and
(ii) The post-acute care service provider or supplier, if the patient is referred to community-based services.
(2) The discharge instructions must include, but are not limited to, the following:
(i) Instruction on post-discharge care to be used by the patient or the caregiver/support person(s) in the patient's home, as identified in the discharge plan;
(ii) Written information on warning signs and symptoms that may indicate the need to seek immediate medical attention. This must include written instructions on what the patient or the
(iii) Prescriptions for medications that are required after discharge, including a list of name, indication, and dosage of each drug, along with any significant risks and side effects of each drug as appropriate to the patient;
(iv) Reconciliation of all discharge medications with the patient's pre-CAH admission/registration medications (both prescribed and over-the-counter); and
(v) Written instructions regarding the patient's follow-up care, appointments, pending and/or planned diagnostic tests, and pertinent contact information, including telephone numbers, for practitioners involved in follow-up care or for any providers/suppliers to whom the patient has been referred for follow-up care.
(3) The CAH must send the following information to the practitioner(s) responsible for follow up care, if the practitioner is known and has been clearly identified:
(i) A copy of the discharge instructions and the discharge summary within 48 hours of the patient's discharge;
(ii) Pending test results within 24 hours of their availability;
(iii) All other necessary medical information as specified in § 485.642(e)(2).
(4) The CAH must establish a post-discharge follow-up process.
(e)
(2) Necessary medical information includes:
(i) Demographic information, including but not limited to name, sex, date of birth, race, ethnicity, preferred language;
(ii) Contact information for the practitioner responsible for the care of the patient, as described at paragraph (b)(4) of this section, and the patient's caregiver/support person(s), if applicable;
(iii) Advance directive, if applicable;
(iv) Course of illness/treatment;
(v) Procedures;
(vi) Diagnoses;
(vii) Laboratory tests and the results of pertinent laboratory and other diagnostic testing;
(viii) Consultation results;
(ix) Functional status assessment;
(x) Psychosocial assessment, including cognitive status;
(xi) Social supports;
(xii) Behavioral health issues;
(xiii) Reconciliation of all discharge medications with the patient's pre-CAH admission/registration medications (both prescribed and over-the-counter);
(xiv) All known allergies, including medication allergies;
(xv) Immunizations;
(xvi) Smoking status;
(xvii) Vital signs;
(xviii) Unique device identifier(s) for a patient's implantable device(s), if any;
(xix) All special instructions or precautions for ongoing care, as appropriate;
(xx) Patient's goals and treatment preferences; and
(xxi) Any other necessary information including a copy of the patient's discharge instructions, the discharge summary, and any other documentation as applicable, to ensure a safe and effective transition of care that supports the post-discharge goals for the patient.
Under Secretary of Defense for Acquisition, Technology, and Logistics, DoD.
Final rule.
This final rule prescribes uniform procedures for the disposition of DoD personal property and establishes the sequence of processes for disposition of personal property of the DoD Components. Subpart A implements the statutory authority and regulations under which DoD personal property disposal takes place, as well as the scope and applicability for the program; defines the responsibilities of personnel and agencies involved in the Defense Materiel Disposition Program; provides procedures for disposal of excess property and scrap; and provides procedures for property donations, loans, and exchanges. Subpart B implements policy for reutilization, transfer, excess property screening, and issue of surplus property and foreign excess personal property (FEPP), scrap released by qualified recycling programs (QRPs), and non-QRP scrap; and provides guidance for removing excess material through security assistance programs and foreign military sales (FMS).
Effective December 3, 2015.
Randal Kendrick, 571-372-5202.
The purpose of this regulatory action is to define responsibilities of personnel and agencies involved in the Defense Materiel Disposition Program, and provide procedures for disposal of excess property and scrap, property donations, loans, and exchanges. It provides responsibilities and procedures about disposal guidance and procedures; and reutilization, transfer, and sale of property for defense materiel disposition. This regulatory action is important because of the drawdown of forces from the wars in Iraq and Afghanistan which resulted in surplus property (including hazardous property as defined in this rule) for which the proper disposition must be determined. This includes materials that could be considered hazardous waste under Resource Conservation and Recovery Act requirements in 42 U.S.C. 6901
Given the authority in:
• 10 U.S.C. 2194, 2208, 2572, 2576, 2576a, and 2576b, the Secretary of Defense may:
○ Make surplus property available for donation to eligible recipients; donate, lend, or exchange without expense to the United States books, manuscripts, works of art, historical artifacts, drawings, plans, models and condemned or obsolete combat materiel that are not needed by the Military Services.
○ Sell or donate designated items to State and local law enforcement, firefighting, homeland security, and emergency management agencies.
• 10 U.S.C. 2557, the Secretary of Defense may provide non-lethal DoD excess personal property for humanitarian purposes.
• 10 U.S.C. 2577, the Secretary of Defense may operate recycling programs at military installations and sell recyclable materials.
• 10 U.S.C. 4683, the Secretary of the Army may loan to recognized veterans' organizations (or local units of national veterans' organizations recognized by the U.S. Department of Veterans Affairs) obsolete or condemned rifles or cartridge belts for use by that unit for ceremonial purposes.
• 10 U.S.C. 7306, the Secretary of the Navy, with approval of Congress, may donate to eligible recipients any vessel stricken from the Naval Vessel Register or any captured vessel for use as a museum or memorial for public display.
• 10 U.S.C. 7545, the Secretary of the Navy may donate or loan captured, condemned, or obsolete ordnance materiel, books, manuscripts, works of art, drawings, plans, models, trophies and flags, and other condemned or obsolete materiel, as well as materiel of historical interest.
• 15 U.S.C. 3710(i), the Secretary of Defense may transfer (donate) laboratory (
• 22 U.S.C. 2151, 2321b, 2321j, 2751, and 2778
• 40 U.S.C. subtitle I and sections 101, 541
• 42 U.S.C. 3015 and 3020, the Secretary of Defense may donate surplus property to State and local government agencies, or nonprofit organizations or institutions that receive federal funding to conduct programs for older individuals.
• 42 U.S.C. Chapter 68, the Secretary of Defense may provide federal assistance to States, local governments, and relief organizations for emergency or major disaster assistance purposes.
This rule provides general guidelines and procedures for property disposition; provides guidance for budgeting for the disposal of excess, surplus, and foreign excess personal property (FEPP) property with updates via program budget decisions; ensures cost-effective disposal of precious metals bearing scrap and end items for the replenishment of valuable resources through the DoD Precious Metals Recovery Program (PMRP); outlines DoD screening methods for disposing of materiel; and describes procedures relating to foreign military sales.
This rule benefits DoD by reducing the amount of excess property in inventory which provides savings to the Department from the associated costs of handling, transporting, and storing property. In FY 2014, DOD redistributed excess property with an acquisition value of $3.2 billion through reutilization by other components of DoD and special programs specified by legislative approval (such as foreign military sales, law enforcement agencies and fire fighters), transfer to other federal agencies, and donation to state approved organizations. In addition, in FY 2014, DoD returned $104 million to the U.S. Treasury through the sale of eligible excess property. The rule also provides environmental benefits through ensuring the disposition of property in accordance with environmental laws such as recycling materials where possible. The rule costs DoD $405M for 90 field offices and 1,500 people in DLA Disposition services worldwide to dispose of excess property and manage surplus useable property transfers, sales, and donations. The cost to cut, shred, and demilitarize
This rule is part of DoD's retrospective plan, completed in August 2011, under Executive Order 13563, “Improving Regulation and Regulatory Review.” DoD's full plan and updates can be accessed at:
On December 29, 2014, the Department of Defense published an interim final rule titled “Defense Materiel Disposition” (79 FR 78144-78218). The 60-day public-comment period expired on February 27, 2015. Two public comments were received. One of the comments expressed praise and support for the Defense Materiel Disposition program. The second comment expressed concern about the provision of excess Department of Defense property to law enforcement agencies.
Response: The congressionally authorized 1033 program provides property that is excess to the needs of the Department of Defense for use by agencies in law enforcement, counter-drug, and counter-terrorism activities. It enables first responders and others to ensure the public's safety and to save lives.
The Department is co-chairing the Law Enforcement Equipment Working Group established by executive order on January 16, 2015. The purpose of the working group is to identify agency actions that can improve Federal support for the acquisition of controlled equipment by law enforcement agencies (LEAs), including by providing LEAs with controlled equipment that is appropriate to the needs of their community; ensuring that LEAs are properly trained to employ the controlled equipment they acquire; ensuring that LEAs adopt organizational and operational practices and standards that prevent the misuse or abuse of controlled equipment; and ensuring LEA compliance with civil rights requirements resulting from receipt of Federal financial assistance.
The Department is prepared to make any changes to the program as a result of changes to the authorizing statute or based on recommendations made by the working group and approved by the President.
After the 60-day public comment period for the interim final rule, minor administrative edits were made to provide clarity or delete unnecessary, confusing language in the regulatory text. In § 273.3 and § 273.12 the definitions for hazardous waste and qualified recycling programs were modified; the web link in § 273.6(a)(3) was corrected; language in § 273.7(b)(5)(ii) was deleted; language in § 273.6(f)(4), § 273.6(f)(6), § 273.10(b)(1), § 273.10(b)(3) and § 273.15(a)(3)(i)-(iii), was modified; and the language in § 273.14(b)(3) and (4) was added.
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This final rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.
The Department of Defense certifies that this final rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.
Sections 273.15(a)(6)(i)(E)(
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This final rule will not have a substantial effect on State and local governments.
Defense materiel, Military arms sales, Waste treatment and disposal.
Accordingly, the interim rule adding 32 CFR part 273 which was published at 79 FR 78144, December 29, 2014, is adopted as a final rule with the following changes. Part 273 is revised to read as follows:
10 U.S.C. 2194, 2208, 2557, 2572, 2576, 2576a, 2576b, 2577, 4683, 7306, 7545; 15 U.S.C. 3710(i); 22 U.S.C. 2151, 2321b, 2321j, 2751, and 2778
(a) This part is composed of several subparts, each containing its own purpose. In accordance with the authority in DoD Directive 5134.12, “Assistant Secretary of Defense for Logistics and Materiel Readiness (ASD(L&MR))” (available at
(1) Prescribes uniform procedures for the disposition of DoD personal property.
(2) Establishes the sequence of processes for disposition of personal property of the DoD Components.
(b) This subpart:
(1) Implements the statutory authority and regulations under which DoD personal property disposal takes place, as well as the scope and applicability for the program.
(2) Defines the responsibilities of personnel and agencies involved in the Defense Materiel Disposition Program.
(3) Provides procedures for disposal of excess property and scrap.
(4) Provides procedures for property donations, loans, and exchanges.
(a) This subpart applies to the Office of the Secretary of Defense, the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the DoD (referred to collectively in this subpart as the “DoD Components”).
(b) If a procedural conflict exists, these references take precedence:
(1) 41 CFR chapters 101 and 102 (also known as the Federal Property Management Regulations and Federal Management Regulation (FPMR and FMR)).
(2) 40 U.S.C. subtitle I, also known as the Federal Property and Administrative Services Act.
Unless otherwise noted, these terms and their definitions are for the purpose of this subpart.
(1) Is abandoned and a diligent effort to determine the owner is unsuccessful.
(2) Is uneconomical to repair or the estimated costs of the continued care and handling of the property exceeds the estimated proceeds of sale.
(3) Has an estimated cost of disposal by A/D that is less than the net sales cost.
(2) Any other drug or substance that the United States Attorney General determines to be subject to control in accordance with 21 CFR part 1308.
(3) Any other drug or substance that, by international treaty, convention, or protocol, is to be controlled by the United States.
(1) A Service educational activity (SEA).
(2) A public agency that uses surplus personal property to carry out or promote one or more public purposes. (Public airports are an exception and are only considered donation recipients when they elect to receive surplus property through a SASP, but not when they elect to receive surplus property through the Federal Aviation Administration (FAA).)
(3) An eligible nonprofit tax-exempt educational or public health institution (including a provider of assistance to homeless or impoverished families or individuals).
(4) A State or local government agency, or a nonprofit organization or institution, that receives funds appropriated for a program for older individuals.
(1)
(2)
(3)
(2) Overseas, HM is defined in the applicable final governing standards or overseas environmental baseline guidance document, or host nation laws and regulations.
(2) In more technical terms, HP includes property having one or more of the following characteristics:
(i) Has a flashpoint below 200 degrees Fahrenheit (93 degrees Celsius) closed cup, or is subject to spontaneous heating or is subject to polymerization with release of large amounts of energy when handled, stored, and shipped without adequate control.
(ii) Has a threshold limit value equal to or below 1,000 parts per million (ppm) for gases and vapors, below 500 milligram per cubic meter (mg/m
(iii) Causes 50 percent fatalities to test animals when a single oral dose is administered in doses of less than 500 mg per kilogram of test animal weight.
(iv) Is a flammable solid as defined in 49 CFR 173.124, or is an oxidizer as defined in 49 CFR 173.127, or is a strong oxidizing or reducing agent with a half cell potential in acid solution of greater than +1.0 volt as specified in Latimer's table on the oxidation-reduction potential.
(v) Causes first-degree burns to skin in short-time exposure, or is systematically toxic by skin contact.
(vi) May produce dust, gases, fumes, vapors, mists, or smoke with one or more of the above characteristics in the course of normal operations.
(vii) Produces sensitizing or irritating effects.
(viii) Is radioactive.
(ix) Has special characteristics which, in the opinion of the manufacturer, could cause harm to personnel if used or stored improperly.
(x) Is hazardous in accordance with Occupational Health and Safety Administration, 29 CFR part 1910.
(xi) Is hazardous in accordance with 29 CFR part 1910.
(xii) Is regulated by the EPA in accordance with 40 CFR parts 260 through 280.
(1) Requires the use of such equipment.
(2) Requires the use to a significant extent of such equipment in the performance of a service or the furnishing of a product.
It is DoD policy consistent with 41 CFR chapters 101 and 102 that excess DoD property must be screened and redistributed among the DoD Components, and reported as excess to the GSA. Pursuant to 40 U.S.C. 701, DoD will efficiently and economically dispose DoD FEPP.
(a) The Assistant Secretary of Defense for Logistics and Materiel Readiness (ASD(L&MR)), under the authority, direction, and control of the USD(AT&L), and in accordance with DoD Directive 5134.12:
(1) Develops DoD materiel disposition policies, including policies for FEPP.
(2) Oversees the effective implementation of the DoD materiel disposition program.
(3) Approves policy changes as appropriate to support contingency operations.
(4) Approves national organizations for special interest consideration as SEAs, and approve categories of property considered appropriate, usable, and necessary for transfer to SEAs.
(b) The Director, Defense Logistics Agency (DLA), under the authority, direction, and control of the Under Secretary of Defense for Acquisition, Technology, and Logistics, through the Assistant Secretary of Defense for Logistics and Materiel Readiness (ASD(L&MR)), and in addition to the responsibilities in paragraph (c) of this section:
(1) Provides agency-level command and control and administers the worldwide Defense Materiel Disposition Program.
(2) Implements guidance issued by the ASD(L&MR) or other organizational elements of the OSD and establishes system concepts and requirements, resource management, program guidance, budgeting and funding, training and career development, management review and analysis, internal control measures, and crime prevention for the Defense Materiel Disposition Program.
(3) Chairs the Disposal Policy Working Group (DPWG).
(4) Provides direction to the DLA Disposition Services on implementing the worldwide defense materiel disposition program.
(5) Provides direction to the DLA inventory control points (ICPs) on the cataloging of items in the Federal Logistics Information System (FLIS) as outlined in DoD 4100.39-M, “Federal Logistics Information System (FLIS) Procedures Manual-Glossary and Volumes 1-16” (available at
(6) Promotes maximum reuse of FEPP, excess, and surplus property. Pursues all possible avenues to sponsor or endorse reuse of excess DoD property and preclude unnecessary purchases.
(7) Directs the DLA Disposition Services communications with the DoD Components regarding changes in service delivery processes or plans that will affect disposal support provided. In overseas locations, these communications will include geographic Combatant Commanders, U.S. Chiefs of Mission, and the in-country security assistance offices.
(8) Accommodates contingency operation requirements. Directs the DLA support team to determine any needed deviations from standard disposal processing guidance and communicates approved temporary changes to the Military Departments and DLA Disposition Services.
(9) Ensures maximum compatibility between documentation, procedures, codes, and formats used in materiel disposition systems and the Military Departments' supply systems.
(10) Programs, budgets, funds, accounts, allocates and controls personnel, spaces, and other resources for its respective activities.
(11) Annually provides to GSA a report of property transferred to non-federal recipients in accordance with 41 CFR 102-36.295.
(12) Assumes the worldwide disposal of all DoD HP except for those categories
(13) Ensures property disposal training courses are available (
(14) Ensures DLA Disposition Services follows the DoD disposal hierarchy with landfill disposal as a last resort.
(c) The DoD Components Heads:
(1) Recommend Defense Materiel Disposition Program policy changes to the ASD(L&MR).
(2) Recommend Defense Materiel Disposition Program procedural changes to the Director, DLA, and provide information copies to the ASD(L&MR).
(3) Assist the Director, DLA, upon request, to resolve matters of mutual concern.
(4) Treat the disposal of DoD property as an integral part of DoD Supply Chain Management; ensure that disposal actions and costs are a part of each stage of the supply chain management of items and that disposal of property is a planned event at all levels of their organizations.
(5) Provide the Director, DLA, with mutually agreed-upon data necessary to administer the Defense Materiel Disposition Program.
(6) Participate in the DoD PMRP and promote maximum reutilization of FEPP, excess, and surplus property and fine precious metals for internal use or as GFM.
(7) Nominate to the ASD(L&MR) national organizations for special interest consideration as SEAs; approve schools (non-national organizations) as SEAs; and recommend to the ASD(L&MR) categories of property considered appropriate, usable, and necessary for transfer to SEAs.
(8) Provide administrative and logistics support, including appropriate facilities, for the operations of tenant and related off-site DLA Disposition Services field activities under inter-Service support agreements (ISSAs).
(9) For property not explicitly identified in this part, follow Service-unique regulations to dispose of and maintain accountability of property. Ensure all accountable records associated with the disposal of FEPP, excess, and surplus property are established and updated to reflect supply status and ensure audit ability in accordance with DoD Instruction 5000.64, “Accountability and Management of DoD Equipment and Other Accountable Property” (available at
(10) Ensure completion of property disposition (reutilization and marketing) training courses, as appropriate.
(11) Administer reclamation programs and accomplish reclamation from excess materiel.
(12) Establish and administer disposal accounts, as jointly agreed to by DLA and the Military Departments, to support the demilitarization (DEMIL) and reclamation functions performed by the Military Departments.
(13) Dispose of surplus merchant vessels or vessels of 1,500 gross tons or more, capable of conversion to merchant use, through the Federal Maritime Administration, U.S. Department of Transportation, by forwarding a “Report of Excess Personal Property” Standard Form 120 to GSA, in accordance with the procedures in 41 CFR chapters 101 and 102. For vessels explicitly excluded by 41 CFR chapters 101 and 102, follow procedures in DoD 4160.28-M, Volumes 1-3, “Defense Demilitarization: Program Administration, Demilitarization Coding, Procedural Guidance” (available at
(14) Dispose of HP specifically designated as requiring DoD Component processing.
(15) Request DLA Disposition Services provide sales services, as needed, for recyclable marketable materials generated as a result of resource recovery programs through the DoD Component QRP in accordance with the procedures in § 273.7.
(16) Consider public donation if applicable before landfill disposal and monitor, with DLA Disposition Services Site personnel, all property sent to landfills to ensure no economically salable or recyclable property is discarded.
(17) Report, accurately identify on approved turn in documents, and turn in all authorized scrap generations to servicing DLA Disposition Services sites.
(18) Update the DoD IUID Registry upon the materiel disposition of uniquely identified items in accordance with the procedures in § 273.9.
(19) Improve disposal policies, training, and procedural implementation among the DoD Components and Federal civilian agencies through membership on the DPWG.
(a)
(1) 41 CFR chapters 101 and 102 implements 40 U.S.C. subtitle I and section 101 which established the Personal Property Disposition Program. 41 CFR chapter 101 and other laws and regulations apply to the disposition of FEPP, excess, and surplus property. In the event of conflicting guidance, 41 CFR chapters 101 and 102 takes precedence. 41 CFR chapter 102 is the successor regulation to 41 CFR chapter 101, the “Federal Property Management Regulation”. It updates regulatory policies of 41 CFR chapter 101.
(2) All references to “days” are calendar days unless otherwise specified.
(3) The Department of Defense provides guidance for budgeting for the disposal of excess, surplus, and FEPP property through DoD 7000.14-R, “Department of Defense Financial Management Regulations (FMRs): Volume 12, `Special Accounts Funds and Programs'; Chapter 7, `Financial Liability for Government Property Lost, Damaged, Destroyed, or Stolen' ” (
(i) Billings are addressed to each Military Department, Defense Agency, and FCA.
(ii) Billing for disposition of excess property depends on decisions made between DLA and the customer: the Military Department, Defense Agency, those sponsoring DoD-related organizations (
(b)
(2) The procedures in this subpart will be used to the extent possible in all
(3) This subpart does not govern the disposal of the property described in paragraphs (b)(3)(i), (ii), and (iii) of this section. However, once property in these categories has been altered to remove the inherently sensitive characteristics, it may be processed through a DLA Disposition Services site using an appropriate FSC code for the remaining components.
(i)
(ii)
(iii)
(c)
(1) Provide standardized disposition management guidance for DoD excess property and FEPP (including scrap) and HP, by using efficient internal and external processes. The expected outcome includes protecting national security interests, minimizing environmental mishaps, satisfying valid needs by extended use of property, permitting authorized donations, obtaining optimum monetary return to the U.S. Government, and minimizing abandonment or destruction (A/D) of property.
(2) Migrate from legacy transactions with 80 record position formats applicable to military standard system procedures (
(3) Ensure cost-effective disposal of precious metals bearing scrap and end items for the replenishment of valuable resources through the DoD PMRP.
(4) Ensure personal property and related subcomponents are not declared excess and disposed of prior to determining the need for economic recovery.
(5) Encourage Military Departments and Defense Agencies to:
(i) Comply with the spirit and intent of Executive Order 12862, “Setting Customer Service Standards.”
(ii) Set results-oriented goals, such as delivering customer value that results in improvement of overall Military Department performance.
(iii) Serve the tax payer's interests by ensuring tax money is used wisely and by being responsive and reliable in all dealings with the public.
(d)
(2) A commander of a DoD activity may authorize foreign nationals and representatives of foreign governments or international organizations to visit a DLA Disposition Services site, except for those foreign nationals and representatives from foreign countries designated as restricted parties in the International Traffic in Arms Regulations (ITAR) in 22 CFR parts 120 through 130 and the EAR in 15 CFR parts 730 through 774.
(3) Visits by foreign nationals for public sales will be at the discretion of the host installation commander in accordance with U.S. export control laws and regulations, the ITAR in 22 CFR parts 120 through 130 and the EAR in 15 CFR parts 730 through 774.
(4) All requests for unclassified information, not previously approved for public release will be referred to the appropriate public affairs office. This includes requests submitted by representatives of foreign governments or representatives of international organizations.
(5) Requests from foreign nationals or representatives from foreign governments of restricted parties will be referred to the appropriate security office.
(6) Release of MLI technical data or CCL items technology will be in accordance with DoD 4100.39-M, DoD 4160.28-M Volumes 1-3, 10 U.S.C. 2576, 22 CFR parts 120 to 130, and 15 CFR parts 730 to 774, DoD Instruction 2040.02, and DoD Instruction 2030.08.
(e)
(f)
(1) Provide administrative and logistics support, including appropriate facilities for the segregation of material according to the established ISSAs.
(i) Establish disposal facilities at suitable locations, separate from host installation active stocks. These areas should permit proper materiel segregation and be convenient to road networks and railroad sidings.
(ii) Approve all facility improvement projects. Identify in the ISSA reimbursable and non-reimbursable host maintenance and repair support, not exceeding that prescribed by regulations of the host activity.
(iii) Fence or otherwise protect the disposal yard to ensure that materiel is safeguarded against theft or pilferage. Security matters identified in ISSAs are covered by security regulations of the DoD Components.
(iv) Provide information security support to DLA Disposition Services field activities through ISSAs, including the retrieval, secure storage, and subsequent determination of the appropriate disposition of classified property found in disposal assets.
(2) Properly containerize and ensure all property turned in to DLA Disposition Services sites is safe to handle and non-leaking to ensure environmental compliance during transport to the DLA Disposition Services site and storage during the disposal process. Drain all fluids from unserviceable vehicles prior to release to disposal and treat fluids according to environmental requirements in accordance with the procedures in Enclosure 3 of DoD Manual 4160.21, Volume 4, “Defense Materiel Disposition Manual: Instructions for Hazardous Property and Other Special Processing Materiel”.
(3) Ensure HW storage facilities meet all applicable environmental standards and requirements, including 40 CFR parts 262, 264, and 265.
(4) Provide funds for disposal of HP failing reutilization, transfer, donation or sale (RTDS), or if the HP is not eligible for RTDS, that it is disposed of on a DLA disposal service contract. Funding for disposal by the Military Department or Defense Agency also applies in instances when non-regulated waste requires special handling for disposal via disposal service contract, or when special services are requested on the disposal service contract.
(5) Comply with the Defense DEMIL Program in accordance with DoD Instruction 4160.28 and DoD 4160.28-M Volumes 1-3.
(i) Provide proper instructions for DEMIL “F” property to the DLA Disposition Services site at the time of physical turn-in or immediately following electronic turn-in in accordance with procedures in Enclosure 5 of DoD Manual 4160.21, Volume 2 and Enclosure 3 of DoD Manual 4160.21, Volume 4 and the procedures on the Army's Integrated Logistics Support Center Web site
(ii) Ship small arms serialized weapons and serialized parts to the Anniston, Alabama, DEMIL Center, as identified on the DLA Disposition Services Web site (
(6) Implement DoD QRP, as directed by DoD Instruction 4715.4, “Pollution Prevention” (available at
(7) Implement TSC measures in accordance with DoD Instruction 2030.08 for USML and CCL items and comply with applicable export control regulations and laws.
(g)
(1) Provide Military Departments and Defense Agencies with disposition solutions and best value support for the efficient and timely RTDS or disposal of excess, surplus, and FEPP property. This includes all required training and guidance on programs affecting disposition practices.
(2) Provide visibility and promote maximum reuse of DLA Disposition Services-managed inventory assets. Implement transfer and donation policies and procedures consistent with GSA regulations.
(3) Provide tailored disposal support to the DoD warfighter during contingency operations, as approved by the ASD(L&MR).
(i) Work with the Military Departments to receive and dispose of property in the most efficient manner. If standard accountability practices are not practical, alternative processes may be established on a temporary basis. However, as time or conditions permit, prescribed processes will be established and appropriate additions, deletions, and adjustments to the official accountable record will be completed.
(ii) Provide comprehensive disposal services supporting customer-unique needs based on mutually developed service agreements. DLA Disposition Services, along with DLA, will work with customers of all levels,
(4) Use the most appropriate sales method to obtain optimum return on investment for all DoD surplus property sold. Respond to inquiries, process disputes, protests, and claims pertaining to disposable property sales.
(5) Implement quality control programs for the Defense Materiel Disposition Program to assure optimum reutilization; proper DEMIL; use of environmentally sound disposal practices; implementation of TSC measures for MLI and CCL items.
(6) Implement TSC in accordance with DoD Instruction 2030.08 for USML and CCL items and comply with applicable export control regulations and laws.
(7) Monitor DLA Disposition Services site PMRP operations and provide support to DoD Components and participating federal agencies. Manage the recovery operations of the PMRP.
(8) Prepare and distribute reports for disposition.
(9) Serve as the office of primary responsibility for environmentally regulated and HP as detailed in DoD Manual 4160.21, Volume 4.
(10) Comply with and implement the provisions of DoD Instruction 4160.28, DoD 4160.28-M Volumes 1-3, and DoD Instruction 2030.08 in the execution of DLA Disposition Services worldwide. Coordinate procedural waivers or deviations for approval by the DoD DEMIL Program Office or DoD TSC Office in DLA-HQ (J-334). Forward policy waivers or deviations from the DoD DEMIL Program Office or DoD TSC Office to the USD(AT&L) or USD(P) respectively for approval.
(11) Monitor property accountability and approve adjustments or corrections to property accounts for assigned DLA Disposition Services sites.
(12) Comply with implementing guidance relative to relationships with Combatant Commanders as prescribed in DoD Directive 5105.22, “Defense Logistics Agency (DLA)” (available at
(13) Support disposal of Military Assistance Program property and other foreign-owned property in accordance with DoD 5105.38-M and § 273.7 of this subpart.
(14) Provide reutilization, donation, and marketing assistance and disposal service to customers.
(15) Maintain liaison with generating activities to determine most efficient method of acceptance (receipt in place vs. physical turn-in), determine mutually agreed-upon schedules for property receipts, and execute memorandums of understanding (MOUs) for receipt-in-place transactions.
(16) Process excess property, surplus property, FEPP, nonsalable materiel, and other authorized turn-ins from generating activities.
(17) Inspect and accumulate physical receipts of property; verify identity, by UII or IUID when applicable, and quantity. DLA Disposition Services sites need not verify quantities where units of issues are: lot, assortment, board foot, cubic foot, foot, inch, length, meter, square foot, square yard, and yard. These units of issue are impractical and economically unfeasible.
(18) Establish and maintain visibility of accountable property records for excess, surplus, and FEPP property.
(19) Provide or arrange adequate covered storage to protect received property from the elements, maintain its value and condition, and reduce handling. Store property to prevent contamination or mixing, ensure proper identification and segregation (bins or areas are prominently marked, labeled, tagged, or otherwise readily identifiable with the property locator record), and allow inspection.
(20) Fence or otherwise protect the disposal yard to ensure materiel is safeguarded against theft or pilferage. DLA Disposition Services are generally a tenant operation on a DoD installation that generates disposal property. The DLA Disposition Services must comply with the security matters identified in ISSAs established with the DoD Component regarding security regulations.
(21) Provide HW storage, as appropriate. Ensure HW storage facilities meet all applicable environmental standards and requirements, including those specified in 40 CFR part 264.
(22) Prepare ISSAs. Coordinate with the local installation to resolve matters of mutual concern.
(23) Provide information and assistance to those who are processing precious metals-bearing property into DoD PMRP.
(24) Ensure periodic inventories are conducted, accountable property records updated, and required inventory adjustment documents are prepared and processed.
(25) Implement reutilization, transfer, or donation (RTD) of surplus property. Promote maximum RTD of FEPP, excess property, and surplus property. Process authorized RTD requests. Ensure accountable records are updated in accordance with DoD Instruction 5000.64.
(26) Provide assistance to all authorized screeners, donees, and other interested persons.
(27) Facilitate the sale of property not reutilized, transferred, or donated, and appropriate for release into commerce.
(28) Deposit sale proceeds and other funds received, including storage charges and transfer monies to the appropriate accounts.
(29) Manage the DoD scrap recycling program (including precious metals recovery) and related financial records.
(30) Assist host installations in executing their QRPs in accordance with 10 U.S.C. 2577 and deliver sales revenues from eligible personal property to defray the costs incurred by operating and improving recycling programs, financing pollution abatement and environmental programs, funding energy conservation improvements, improving occupational, safety, and health programs, and funding morale, welfare, and recreation programs.
(31) Ensure DEMIL, including small arms serialized weapons and serialized parts is accomplished in accordance with DoD Instruction 4160.28 and DLA Disposition Services internal direction. Provide shipment locations and instructions to generating activities, as requested.
(32) Document handling and receipt of serialized weapons in accordance with the procedures in Defense Logistics Agency Instruction (DLAI) 1104, “Control of Small Arms by Serial Number” (available at
(33) Update the DoD IUID Registry upon the materiel disposition of uniquely identified items in accordance with the procedures in § 273.9.
(h)
(1) Ensure managed items are properly cataloged in the FLIS, in accordance with DoD 4100.39-M. To prevent unauthorized disposition or release within DoD, other Federal civilian agencies, or release into commerce, include required data elements such as UII (when applicable), accurate codes for DEMIL, controlled inventory items, precious metals, shelf life items, and critical items (critical safety items (CSI) or flight safety critical aircraft parts), or other applicable data elements.
(2) Prepare complete instructions when property is assigned DEMIL Code “F,” in accordance with life-cycle management requirements in Enclosure 5 of DoD 4160.28-M Volume 2. Additionally, load the instruction in the DoD DEMIL “F” Instruction repository hosted by the Army's Integrated Logistics Support Center Web site at
(3) Review DLA Disposition Services assets and orders, as appropriate, prior to initiating new purchases.
(4) Process other ICP interrogations or orders for requirements assigned a UMMIPS priority designator:
(i) Falling within Issue Priority Group 1 (Priorities 01-03).
(ii) In accordance with the procedures in DLM 4000.25-1.
(iii) Considering on-hand assets to the same extent as would be done to satisfy their own service orders.
(5) Prepare data, records for accountability, and provide disposition recommendations as prescribed here and in DoD Instruction 5000.64 in order to maintain backup material for audit review.
(6) Annually provide DLA Disposition Services with updates to points of contact on the DoD DEMIL program Web site
(7) Arrange for DEMIL of those items not authorized for DLA Disposition Services site DEMIL processing.
(8) Submit available technical data needed to prepare specialized offers and reclamation requirements, when requested.
(9) Identify items requiring reclamation and advise Military Department and Defense Agency ICPs or
(10) Prepare and forward reclamation transactions for the interservice interchange of data for component parts with reclamation potential.
(11) Process reclamation notifications and data interchange transactions of other ICPs.
(a)
(2) Generating activities are encouraged to retain physical custody until disposition instructions are provided to reduce processing costs;
(3) Disposal of wholesale excess DoD property CONUS stocks from DLA Depot recycling control points (RCPs) is automated. This property does not require transport to a DLA Disposition Services site. Authorized excess DoD property is transferred between the RCP account and the DLA Disposition Services account (SC4402). The following FSGs, FSCs, SCCs, and DEMIL codes are ineligible for RCP:
(i) FSGs: 10, 11, 12, 13, 14, 18, 26, 68, 80, 87, 88, 89, 91 and 94.
(ii) FSCs: 2350, 3690, 4470, 4920, 4927, 6505, 6508, 6750, and 8120.
(iii) SCCs: H.
(iv) DEMIL Codes: G and P.
(b)
(2) Property not disposed of through RTDS will be processed for disposal under an HW contract, except as specified elsewhere. For example, HP will be processed on HW disposal service contracts. Other property will be downgraded to scrap, demilitarized, processed for A/D, or disposed of through a DLA Disposition Services service contract.
(3) DLA Disposition Services sites minimize processing delays as much as possible. In the event a site is unable to physically accept the property at the desired time and location due to workload, generating activities may retain the property for processing in-place, seek another DLA Disposition Services site, or hold the property until the DLA Disposition Services site is able to receive the property.
(4) DLA Disposition Services sites:
(i) Accept and process nonsalable materiel that has no reutilization, transfer, donation, or sale value but is not otherwise restricted from disposal by U.S. law or Federal or military regulations.
(ii) Ensure that disposition is by the most economical and practical method; for example, donation in lieu of A/D or through a service contract that meets minimum legal requirements for disposal of the specific types of property.
(5) DLA Disposition Services sites may not accept (either physically or on its account) and no reutilization or sale service will be given for:
(i) Radioactive waste, items, devices, or materiel (all materiel that is radioactive).
(ii) Property designated for disposal by the Military Departments as identified in DoD Manual 4160.21, Volume 4.
(iii) Classified material, except that which is addressed by paragraph (b)(5)(v) of this section.
(iv) Nuclear weapons-related materiel.
(v) Classified and unclassified information systems security material (cryptological (CRYPTO) or communications security (COMSEC)). Disposal of FSCs 5810 and 5811 are the responsibility of the Military Departments and may not be transferred to DLA Disposition Services in their original configuration as specified in DoD 4160.28-M Volumes 1-3.
(vi) Property containing information covered by 5 U.S.C. 552a, also known as the Privacy Act of 1974.
(6) DoD Components will manage the collection and disposal of installation refuse and trash. If refuse and trash, when properly segregated, possesses RTDS potential, disposition may be accomplished via DLA Disposition Services, recycling provisions of refuse collection contracts, in-house refuse operations, or QRPs as appropriate.
(7) The DLA Disposition Services site operating as a tenant on an installation will notify the host activity when unauthorized shipments are received at the DLA Disposition Services site (including off-site shipments) of radioactive items, classified material, nuclear weapons-related materiel, and classified and unclassified information systems security material (CRYPTO/COMSEC). The host activity will be responsible for retrieving and securing any radioactive items, classified items and unclassified information systems security material (CRYPTO/COMSEC) immediately upon request of the DLA Disposition Services site.
(8) DLA Disposition Services sites will not accept scrap accumulations that are contaminated or commingled with:
(i) MPPEH.
(ii) MLI that require DEMIL (DEMIL Codes C, D, E and F) and MLI that require mutilation (DEMIL Code B). MLI with DEMIL Code G and P are not authorized for acceptance by DLA Disposition Services in their original state.
(iii) CCL items that have not undergone mutilation to the point of scrap as defined in DoD Instruction 2030.08.
(iv) HP FSCs.
(9) Contaminated scrap should be turned in as HW.
(c)
(2) Generating activities are responsible for initial identification and segregation. The major basic material or content will be used in the item nomenclature block of the DTID.
(3) Scrap will be segregated to ensure only authorized items are in a scrap pile.
(4) DLA Disposition Services sites will provide guidance and, where possible, containers for use by scrap generators at the source.
(5) The generating activity collecting the scrap or waste will maintain proper segregation of the material and determine a point at which no further material will be added. When scrap piles are being built by the DLA Disposition Services site, the same principles apply. Scrap generated from explosive and incendiary items and chemical ammunition is dangerous and will not be commingled with other types of property.
(d)
(2) The generator will provide to the DLA Disposition Services site an original and three hard copies of a DD Form 1348-1A, “Issue Release/Receipt Document,” or DD Form 1348-2, “Issue Release/Receipt Document with Address Label” (available at
(3) Generating activities may use the DLA Disposition Services web-based program electronic turn-in document (ETID) for submitting the required information electronically. ETID accommodates generators that do not have service-unique automated capabilities. ETID access and guidance are located on the DLA Disposition Services Web site. Generating activities requiring ETID access must apply for a user ID and password.
(4) In addition to the data required by DLM 4000.25-1, the DTID must clearly indicate:
(i) The reimbursable category (such as foreign purchased, NAF, FCA), including the reimbursement fund citation, or an appropriate indicator that reimbursement is required (
(ii) The value and a list of component parts removed from major end items or a copy of the limited technical inspection showing the nature and extent of repair required.
(iii) One of the SCCs listed in DLM 4000.25-2 as determined by the generator.
(5) DoD Components will turn in usable property with line item designations.
(i) To the extent possible, usable property will be turned in as individual line items with their assigned and valid NSN and UII (when applicable). Exceptions include property turned in as generator batchlots (see criteria in paragraph (g)(5)(ii) of this section); furniture turned in as a group on a
(ii) Property may be turned in without a valid NSN when the materiel cannot be identified to a valid NSN in FEDLOG (
(iii) Generating activities will assign an LSN if a part number or barcode is not available; the property is lost, abandoned, or unclaimed privately owned personal property; or the property is confiscated or captured enemy materiel. In Block 25 of the DTID, annotate the FSC, NATO codification bureau code, if available, and identify the noun, nomenclature, or part number.
(iv) Due to national security concerns, the FSCs listed in Table 2 of this section that are clearly MLI or CCL items require a higher degree of documentation. When these items are not assigned an NSN, the DTID must include the appropriate FSC; the valid part number and manufacturer's name; nomenclature that accurately describes the item; the end item application; and a clear text statement explaining why the NSN is not included (
(v) The DTID for any property turned in by LSN without an assigned DEMIL code must include a required clear text DEMIL statement, based on information in DoD 4160.28-M Volumes 1-3. Generating activities may request assistance of a DLA Disposition Services site, DLA, or the integrated manager for the FSC to determine the appropriate statement. DLA Disposition Services sites will assist generating activities in developing the clear text DEMIL statement and assignment of the appropriate DEMIL code. If assistance is not requested or not used, DLA Disposition Services sites may reject the turn-in of materiel which does not meet established criteria.
(6) Scrap DTIDs will include:
(i) DI code.
(ii) Unit of issue (pounds or kilograms).
(iii) Quantity (total weight (estimated or actual)).
(iv) DTID number.
(v) Precious metals indicator code.
(vi) Disposal authority code.
(vii) Basic material content (Block 17).
(viii) Reimbursement data, if applicable.
(7) For HP documentation, see DoD Manual 4160.21, Volume 4.
(8) The generating activities will complete documentation for in-transit control of property (excluding scrap (SCC S)), waste, NAF, lost, abandoned, or unclaimed, privately owned, and FCA property) in accordance with DoD 4160.28-M Volume 3, for shipments or transfers to DLA Disposition Services sites of property with a total acquisition value of $800 or greater and all property designated as pilferable or sensitive identified by an NSN or part number. The ICS document tracks property from the time of release by generating activity (regardless whether the property is shipped to the DLA Disposition Services site or retained by the generating activity) until the DLA Disposition Services site accepts accountability. The generating activities will update the records to reflect the change in accountability and custody.
(9) DoD Components will identify defective items, parts, and components containing latent defects.
(i)
(
(
(
(B)
(
(
(
(ii)
(B) The DLA Disposition Services Safe Alert or Latent Defect (SALD) program contains additional disposal processing information for defective property and can be viewed at
(iii)
(B) Return copies of the DTID from the DLA Disposition Services site. Unless generating activities provide written notification to DLA Disposition Services sites that electronic receipt confirmations are acceptable, DLA Disposition Services sites will provide final receipt documentation for each DTID. Generating activities can use the DLA Disposition Services property accounting system to query transactions status.
(e)
(ii) An MOU will be established between the servicing DLA Disposition Services site and the generating activity. Custodial and accountability responsibilities will be identified in the MOU. DLA Disposition Services sites will not take accountability until the MOU is executed and signed at the approval levels identified in the MOU.
(iii) Inspection(s) will be completed by the DLA Disposition Services site, where appropriate. If not accomplished by the DLA Disposition Services site, a mutually agreeable disposal condition code will be assigned.
(iv) Generating activities are responsible for all expenses incurred before acceptance of accountability by a DLA Disposition Services site. At the point of DLA Disposition Services accountability acceptance (not in conditional acceptance time frame as described in paragraph (g)(2) of this section), expenses (
(v) The DLA Disposition Services site will provide barcode labels to the generating activity to affix on the property. The labels will contain the DTID number, DEMIL code, and federal condition code. The label will be positioned to clearly indicate that the property accountability has passed to DLA Disposition Services (
(2)
(f)
(2) Generating activities will schedule all transfers (receipt in-place or physical) through advanced notification (
(3) Usable property will, to the extent possible, be transferred as individual line items with their assigned valid NSN and UII (when applicable). Exceptions include property turned in as generator batchlots, furniture turned in as a group on a “tally-in” form, and locally purchased property without an NSN.
(4) Scrap, properly identified with supply class by basic material content and segregated, must be transferred to a DLA Disposition Services site using a DTID.
(5) If the deficiency prohibits further DoD use, the materiel will remain in SCC Q, and owners will direct transfer of the materiel to DLA Disposition Services sites following the guidance in paragraph (d)(9) of this section. Improperly documented, unauthorized source, defective, non-repairable, and time-expired aviation CSI/FSCAP materiel that is not mutilated by the holding activity will be directed to the DLA Disposition Services site in SCC Q with management code S. All such materiel will be mutilated. The ICP/IMM should identify to the DLA Disposition Services any unique instructions for disposal requiring specific methods or information regarding hazardous material, waste, or property contained in the item. When transferring such aviation CSI/FSCAP to a DLA Disposition Services site, the generating activity DTID must clearly state in block 17 that the part is defective, non-reparable, time-expired, or otherwise deficient and that mutilation is required.
(6) Property capable of spilling or leaking may not be transferred to a DLA Disposition Services site in open, broken, or leaking containers. All property will be non-leaking and safe to handle.
(7) For physical transfers, generating activities will be responsible for movement of the property or scrap to the nearest DLA Disposition Services location.
(8) DEMIL instructions are to be provided by the ICP or IMM. DEMIL F items must have a valid and verifiable NSN. LSNs with DEMIL F are not valid. DLA Disposition Services sites will not accept DEMIL F property without the proper instructions.
(9) DTIDs that do not meet the requirements in paragraph (e) of this section will be rejected and returned to the Military Departments.
(10) To obtain DEMIL F instructions, please visit the Army's Integrated Logistics Support Center Web site at
(g)
(ii) DLA Disposition Services sites will assist, when requested, in tracing property when an in-transit control follow-up has been received by the generating or shipping activity.
(iii) DLA Disposition Services sites will maintain close liaison with generating activities to ensure:
(A) Informational guidance on disposal transfers is given to generating activities.
(B) A DLA Disposition Services site's receiving capability and the volume of property to be transferred is taken into consideration for turn-in scheduling. Property inspections will be performed in-place if more advantageous due to the characteristics of the property, as determined by DLA Disposition Services.
(C) Assistance is provided to generating activities, as needed, to assure proper segregation of scrap and HW material before transfer. If the weight generated, market conditions, or local trade practices warrant, further scrap segregation will be made.
(D) All property (except unsalable materiel that is precluded from sale by
(E) Property received is protected to prevent damage from unnecessary exposure to the elements. Property transferred as condemned may still be usable, and its preservation may benefit the Defense Materiel Disposal Program.
(
(
(iv) The generating activity will assure all property and scrap is properly identified, including special handling requirements, and that automated information system or manually prepared documentation contains the required number of copies and appropriate information for property received in place or physically accepted.
(A) To the maximum extent possible, DLA Disposition Services sites will validate items during pre-receipt processes with documentation preparation and receipt processes with the physical transfer of the property.
(
(
(
(B) Validation will consist of verifying property description and quantity, and assuring an authorized and appropriate SCC was assigned by the generating activity. DLA Disposition Services sites and generating activities will work together to validate and verify requirements and obtain appropriate certifications, etc., when property is received in place versus physically transported to a DLA Disposition Services site. The MOU, discussed in § 273.6, will be used for securing and documenting these requirements.
(C) DLA Disposition Services site personnel may exercise discretionary authority to change and challenge SCCs (except for items in SCC Q, which will be downgraded to scrap and mutilated).
(D) For items in the general hardware, clothing, tools, furniture, and other nontechnical FSCs, DLA Disposition Services sites are authorized to use their best knowledge, judgment, and discretion to change and assign the appropriate SCC when determined, through physical inspection and examination, or where an obvious error in condition coding exists. DLA Disposition Services sites are responsible for any SCC changes they make and will document the change on the DTID.
(E) For specialized items such as avionics, or items that require test, measurement, or diagnostic to determine serviceability, DLA Disposition Services site should challenge the generating activity SCC assignment if it appears incorrect. Items in original pack and unopened containers that are coded condemned or unserviceable should be viewed with guarded skepticism and challenged back to the generating activity.
(v) Appropriate actions will be taken for discrepancies detected during pre-receipt or receipt:
(A) If property is to be physically received and the generating activity's representative is present, accountability and physical custody of the property will normally remain with the generator until reconciled. DLA Disposition Services sites, at their discretion, may retain physical custody until reconciled.
(B) Discrepancies noted during the receiving process, which may be discovered after electronic or hard copy documentation is received, will be processed in accordance with DLAI 4140.55/AR 735-11-2/Secretary of the Navy Instruction (SECNAVINST) 4355.18A/Air Force Joint Manual (AFJM) 23-215, “Reporting of Supply Discrepancies” (available at
(C) DLA Disposition Services will barcode the property for identification purposes. Barcoding should include use of any UII or IUID in place when applicable.
(2)
(i) Conditional acceptance occurs when a generating activity representative accompanies a transfer. DLA Disposition Services sites will provide a conditional receipt copy at time of physical delivery. Conditional acceptance becomes official and final acceptance receipt unless property is officially rejected by the DLA Disposition Services site within 15 workdays.
(ii) Accountable acceptance becomes final when verification of accurate property description, valid condition code assignment, correct quantity, and UII (when applicable) is completed by the DLA Disposition Services site. Physical inspections will be conducted, as appropriate.
(iii) During the conditional acceptance processing, if the property is physically transferred to the DLA Disposition Services site and an inventory discrepancy surfaces, the DLA Disposition Services site will research and provide a report of the lost, damaged, or destroyed property in accordance with procedures in DoD 7000.14-R Volume 12, Chapter 7. If the property remains at the generating activity site for receipt-in-place and an inventory discrepancy surfaces, the generating activity will research and provide a report of the lost, damaged, or destroyed property in accordance with procedures in DoD 7000.14-R Volume 12, Chapter 7. The accountable organization will amend the accountable property records as appropriate upon completion of the property loss investigation.
(3)
(4)
(i) For property physically received by a DLA Disposition Services site, generating activities will be provided a receipt copy upon delivery.
(A) These receipts are considered conditional acceptance of accountability, pending completion of DLA Disposition Services site inspection and verification of the turn-in. If no follow-up report is received by the generating activity within 15 workdays, the provisional copy becomes the official receipt document, and the DLA Disposition Services Site assumes full accountability.
(B) If the receipt is not recorded in a web based document management system within 30 days, the provisional copy becomes the official receipt copy and the DLA Disposition Services Site assumes full accountability.
(C) If a discrepancy is found, DLA Disposition Services sites may contact the generating activity and attempt resolution. If required, the guidance shown in paragraph (g)(2)(iii) of this section will be used for inventory discrepancies.
(D) When acceptance is not possible, a reject notice will be provided to the generating activity within 7 workdays. Return receipts are available to generators via a web based document management system.
(ii) For turn-ins made by commercial carrier, parcel post, etc., DLA Disposition Services sites will provide receipt copies no later than 5 workdays after delivery. These receipts are considered conditional acceptance of accountability pending completion of DLA Disposition Services site inspection and verification of the turn-in. If a discrepancy is found, DLA Disposition Services sites may contact and attempt resolution. When acceptance is not possible, a reject notice will be provided to the generating activity within 7 workdays.
(5)
(A) Batchlot property with an extended line item value of $800 or less, in SCCs A—H.
(B) Batchlot property that does not contain pilferable or sensitive materiel.
(ii) Property assigned DEMIL code “A” in the critical or non-critical FSG/FSCs, excluding FSCs 5985, 5998, and 5999, is eligible for batchlotting.
(iii) DLA Disposition Services sites may batchlot property requiring the same type of special processing,
(iv) DLA Disposition Services sites may batchlot clothing and textile products with infrared or spectral reflectance with a DEMIL code of “E,” but the batchlots require a certification on the DTID (see Figure 1 of this section).
(v) DLA Disposition Services sites will exclude from batchlotting:
(A) Chemical, biological, radiological, and nuclear (CBRN) property and clothing (FSG 83 and 84); lab equipment such as centrifuges, biological incubators, micromilling machines, biological safety cabinets and laboratory evaporators; (FSG 66), camouflage clothing and individual equipment.
(B) Low dollar property with high potential for RTDS.
(C) Property defined as a special case in Enclosure 3 of DoD Manual 4160.21, Volume 4 that requires special receipt and handling requirements that cannot be met at time of receipt.
(D) DEMIL required items identified in DoD 4160.28-M Volumes 1-3, DEMIL codes B, Q, and property in critical FSCs in DEMIL codes C, D, E, F, G, and P. Property in FSCs 5935, 5996, and 5999 will not be batchlotted regardless of DEMIL code.
(E) Property requiring inert certification.
(F) Small arms or light weapons.
(G) Lasers.
(H) Radioactive materiels (
(I) Chemical, biological, radiological, nuclear—defense (CBRN-D) equipment—These items are DEMIL F and instructions have to be followed for disposition and are NOT turned in to DLA disposition.
(J) Items with a CIIC. Items determined to be pilferable or sensitive in accordance with Volume 6 of DLM 4000.25 and DLA Regulation 4145.11/AR 740.7/Navy Supply System Command Instruction (NAVSUPINST) 4440.146C/Marine Corps Order (MCO) 4450.11, “Safeguarding of DLA Sensitive Inventory Items, Controlled Substances, and Pilferable Items of Supply” (available at
(K) HP.
(L) Metalworking machinery and former industrial plant equipment.
(M) Grade 8 fasteners and machine bolts in FSCs 5305 and 5306. Do not batchlot these items if they appear on the SALD list.
(N) Property in SCC A with a total extended value, per DTID, of $50 or more, as shown in Table 3 of this section.
(vi) Notwithstanding the information in paragraph (g)(5)(v) of this section, RTD customers may order individual items from a batchlot. DLA Disposition Services sites will honor these requests. Otherwise, items will not be removed from batchlots.
(vii) DLA Disposition Services sites are responsible for ensuring official receipt copies are returned accessible to generating activities (electronically or hard copy). They must provide tracing assistance for any DTID receipt copy not received by the generating activity.
(h)
(2) Scrap transferred to a DLA Disposition Services site or received in original location will be accumulated and segregated to prevent commingling basic material content.
(i) For use in providing the basic material content information, scrap will be identified using the standard waste and scrap classification code (SCL) contained in the DAISY codes and terms pocket reference located at the DLA Disposition Services Web page (
(ii) Barcoded labels are not required for scrap accumulations. However, both the generating activity and DLA Disposition Services accounting records must correspond with the scrap identifications and weights. DLA Disposition Services must use the SCL in its DAISY accounting records.
(iii) During storage, DLA Disposition Services will place appropriate signs to identify types of scrap and maximize visibility to customers.
(i)
(2) Accountability records will be maintained in auditable condition, allow property to be traced from receipt to final disposition and cleared from the ICS, when appropriate. DLA Disposition Services' accountability system will incorporate the requirements of DoD Directive 8320.02, 15 CFR parts 730 through 799, and DLA Regulation 7500.1, “Accountability and Responsibility for Government Property in the Possession of the Defense Logistics Agency,” (DLA Regulation 7500.1 is available at:
(3) If a contingency operation requires a deviation from standard accountability practices, Military Departments and DLA Disposition Services sites will maintain spreadsheets, listings, or the most appropriate method of temporary accountable records. When the contingency operation reaches a point where prescribed accountability practices can be resumed, the temporary documents will be used for establishing, updating, or adjusting official accountability records (both Military Departments and DLA Disposition Services sites) as applicable.
(4) DLA Disposition Services' property accountability records will be maintained in sufficient detail to support required sales proceeds reimbursements.
(i) Materiel with different fund citation appropriations may be combined in sale lots; however, DLA Disposition Services accountability systems will retain individual disbursement information to allow appropriate reimbursements to local or departmental accounts, as designated by DoD 7000.14-R, “Department of Defense Financial Management Regulations (FMRs): Volume 11a, “Reimbursable Operations, Policy and Procedures“; Chapter 5, “Disposition of Proceeds from Department of Defense Sales of Surplus Personal Property”, (available at
(ii) Non-reimbursable scrap may be physically combined with other scrap when considered advantageous; however, accountability records will be maintained to substantiate pro-rating of the proceeds.
(5) Usable and scrap determination and accounting are calculated as follows:
(i) When property not requiring DEMIL is assigned SCCs F, G, or H, the DLA Disposition Services site may determine property has scrap value only and classify and process as “scrap upon receipt.”
(ii) Personal property assigned other SCCs, which the DLA Disposition Services site determines to only have basic materiel content value, may be downgraded to scrap after the end-of-screening date (ESD) and completion of any required DEMIL.
(iii) DLA Disposition Services sites will minimize changing or challenging SCCs and downgrades upon receipt.
(iv) When an item has been offered on a competitive sale and no bid has been received, or bids received are less than the scrap value of the item, the property may be downgraded to scrap and re-offered for sale as scrap. This includes property returned to a DLA Disposition Services site from a joint commercial sales partner that has been confirmed as mis-described or as containing only basic material content value. Similar items received within a 12-month period that have a history of being nonsalable may be downgraded to scrap at ESD.
(v) When a DLA Disposition Services site determines obsolete printed materials have no RTD potential and only scrap market value, these items will be downgraded to scrap upon receipt.
(vi) When end items are turned in as scrap and are reclaimed or disassembled for their usable components, the DLA Disposition Services site's records will be adjusted to reflect the acquisition cost (estimated, if not known) of the components removed.
(6) Scrap accounting is calculated by weight.
(i) Estimated weight may be used for receiving scrap if scales are not available or if weighing is impractical. Disposition of scrap for sale or demanufacturing must be weighed to provide accurate accounting and reconciliation with the DLA Disposition Services accountable record.
(ii) The acceptable degree of accuracy of estimation is 25 percent for property processed by the ton, and 10 percent for property processed by the pound. Overages and shortages discovered on release of property that exceed allowable tolerances will be adjusted.
(iii) High value scrap must be weighed at the time of receipt.
(j)
(2) Activities with scales will maintain a log or record of visits by qualified inspectors showing the date of the visit and, where appropriate, action taken to correct the accuracy of the scales. A signed copy of the inspector's findings will be maintained. The activity is responsible for obtaining the services of a qualified scale inspector and requesting repair when needed.
(k)
(2) Physical inventories for DEMIL required property, HP, and pilferable or sensitive property will be conducted at least annually. Inventory accuracy of 100 percent will be maintained. If less than 100 percent accuracy, DLA Disposition Services site will report the discrepancies in accordance with procedures in DoD 7000.14-R.
(3) Usable property remaining on the DLA Disposition Services site account in excess of 6 months will be inventoried on a monthly basis and certified.
(4) Inventory discrepancies will be researched as part of the inventory process and corrections documented as inventory adjustments.
(5) DLA Disposition Services will provide the DLA Disposition Services sites with direction for maintaining and reconciling scrap accumulations and accountable records. Reconciliation will be performed at least monthly.
(l)
(2)
(3)
(ii) The DLA Disposition Services site will provide the custodial activity with requested item identification number, such as NSN, DTID number, or UII (when applicable) or copies of pertinent documentation for the lost, damaged, or destroyed item.
(A) If the custodial activity determines the discrepancy is due to a record keeping error, it will fully document the error and inform the DLA Disposition Services site to prepare an inventory adjustment.
(B) If the discrepancy is not due to a record keeping error, the custodial activity must prepare a DD Form 200, “Financial Liability Investigation of Property Loss,” in accordance with criteria contained in DoD 7000.14-R, Volume 12, Chapter 7.
(iii) Within 30 days after notification of the loss of the property, the custodial activity must provide the DLA Disposition Services site a completed copy of the DD Form 200 as supportive documentation for the DLA Disposition Services site to process an inventory adjustment.
(m)
(2)
(n)
(2)
(i) AR 36-2, “Audit Services in the Department of the Army” (available at
(ii) SECNAVINST 7510.7F.
(iii) Air Force Policy Directive 65-3, “Internal Auditing” (available at
(a)
(2)
(ii) 42 U.S.C. chapter 68 authorizes federal assistance to States, local government, and relief organizations based on a declaration of emergency or major disaster.
(iii) 10 U.S.C. 2557, 2572, 2576, and 5576a establishes the procedures for organizations participating in surplus personal property donation programs, specifically the organizations discussed in this section.
(3)
(b)
(i) 42 U.S.C. 2000a, also known as Title VI of the Civil Rights Act of 1964.
(ii) 20 U.S.C. 1681, also known as Title IX of the Education Amendments of 1972.
(iii) 29 U.S.C. 701 also known as the Rehabilitation Act of 1973.
(iv) 42 U.S.C. 6101 also known as the Age Discrimination Act of 1973.
(2) Any complaints alleging violations of these acts or inquiries concerning the applicability to the programs covered in this section will be handled by elevating issues through the appropriate chains of command and agency-to-agency dialog.
(c)
(ii) GSAXcess® is available for State agencies for surplus property (SASPs) and donees, when authorized, to search for and select property for donation. Screening is accomplished during the timeframes specified in § 273.15.
(iii) Upon allocation, GSAXcess® will generate the SF 123, “Transfer Order Surplus Personal Property” to the agency for approval and return. DoD orders for DLA Disposition Services assets with a UMMIPS Priority Designator within Issue Priority Group 1 (Priorities 01-03), and non-mission capable supply (NMCS) orders will be submitted to DLA Disposition Services as an exception. DLA Disposition Services will immediately fill these orders and notify the GSA area property officer for the Front End Data System record adjustment. Priorities 4-15 orders received during this timeframe will not be honored.
(2)
(3)
(4)
(i) Will be submitted to GSA through the GSA on-line Personal Property Reporting Tool within 90 calendar days after the close of each fiscal year. The Personal Property Reporting Tool is located at
(ii) Must reference Interagency Report Control Number 0154-GSA-AN and contain:
(A) Name of the non-Federal recipient.
(B) Zip code of the recipient.
(C) Explanation as to the type of recipient (
(D) Appropriate 2-digit FSC group.
(E) Total original acquisition cost of all personal property furnished to each recipient.
(F) Appropriate comments as necessary.
(G) IUID or UII equivalent.
(5)
(A) Agricultural commodities, food, and cotton or woolen goods determined from time to time by the Secretary of Agriculture to be commodities requiring special handling with respect to price support or stabilization.
(B) Controlled substances.
(C) Foreign purchased property (as identified in DoD 5105.38-M).
(D) Naval vessels of the following categories: battleships, cruisers, aircraft carriers, destroyers, and submarines.
(E) NAF property.
(F) MLI, except in compliance with DoD Instruction 4160.28, DoD 4160.28-M Volumes 1-3, and DoD Instruction 2030.08.
(G) CCL items, except in compliance with 15 CFR parts 730 through 774 and DoD Instruction 2030.08.
(H) Property acquired with trust funds (
(I) Records of the Federal Government.
(J) Vessels of 1,500 gross tons or more, excluding specified Naval combat vessels, which the Maritime Administration determines to be merchant vessels or capable of conversion to merchant use (as defined in 41 CFR chapters 101 and 102).
(K) Items as may be specified from time to time by the GSA Office of Government-wide Policy.
(L) Property that requires reimbursement upon transfer (such as abandoned or other unclaimed property that is found on premises owned or leased by the Government).
(M) Hazardous waste.
(N) Other Hazardous property and hazardous materials not otherwise identified in the categories in paragraphs (c)(5)(i)(A) through (M) of this section that is not serviceable, for example supply condition codes (SCCs) listed in DLM 4000.25-2 as SCC E for unserviceable (limited restoration) materiel, SCC F for unserviceable (reparable) materiel, and SCC G for unserviceable (incomplete) materiel, SCC H for unserviceable (condemned) materiel, SCC P for unserviceable (reclamation) materiel.
(ii) Certain items require special processing for donations (in accordance with the requirements in DoD 5105.38-M. DoD Manual 4160.21, Volume 4 provides the procedures.
(6)
(ii) Known restrictions require written certification and signature by the recipient at the time of removal.
(7)
(i)
(A) The FAA Administrator has the responsibility for selecting property determined to be either:
(
(
(
(B) Public airports will secure advance approval of donations by obtaining signatures of the applicable FAA airport branch chief and by the GSA regional office on the order (SF 123).
(ii) United States Agency for International Development.
(iii)
(B) The SASP donates property to public and eligible nonprofit organizations. Types of eligible recipients are:
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(C) High schools that host a Junior Reserve Officer Training Corps (JROTC) Unit or a National Defense Cadet Corps Unit, Naval Honor Schools, and State Maritime Academies should contact
(D) SEAs must maintain separate records that include:
(
(
(
(8)
(ii) Screeners, having identified themselves and indicated the purpose of their visit, will sign the Visitor or Vehicle Register and be allowed to complete donation screening only.
(9)
(ii) When a prospective donee contacts a DLA Disposition Services site or military installation regarding possible acquisition of surplus property, the individual or organization will be advised to contact the applicable SASP for determination of eligibility and procedures to be followed. The DLA Disposition Services sites will assist interested parties regarding availability of surplus property.
(iii) SASP contacts may be located on the GSA Web site at
(iv) Prospective donees must go to GSAXcess® to gain access, shop, and select property.
(A) Once GSA allocates property, the SASP will receive an SF 123. The donee should then sign and return the SF 123 to the appropriate GSA office.
(B) GSA will then approve the SF 123 by signature, return the SF 123 to the SASP, and notify DLA Disposition Services with an electronic order.
(v) Procedures for return of surplus FEPP to the United States for ultimate donation are covered in Enclosure 4 of DoD Manual 4160.21, Volume 2.
(vi) DLA Disposition Services sites will require recipients of HM to sign a certification statement as shown in Figure 2 of this section.
(A) After allocation and approval, if the customer no longer wants or needs the property, the customer is required to notify the SASP, GSA, and the DLA Disposition Services site.
(B) GSA may reallocate the property if there is an existing request by another potential recipient. If the property is reallocated, cancellation of the existing request will be transmitted by GSA and
(C) If the property is not reallocated, GSA must cancel the existing MRO.
(10)
(ii) The SASP or designated donee will only pay for direct costs of care and handling incurred in the actual packing, crating, preparation for shipment, and loading. The price will be the actual or carefully estimated costs incurred by DoD traffic management activities for labor, material, or services used in donating the property.
(iii) Advance payment for care and handling costs will normally be required; however, State and local governmental units may be exempted from this requirement and authorized to make payment within 60 days from date of receipt of property. Advance payment may be required in any case where prompt payment after billing has been unsatisfactory.
(iv) Donees must schedule removal of property with the DLA Disposition Services site. Upon arrival, the individual must provide identification and must sign the DLA Disposition Services Visitor or Vehicle Register, indicating the purpose of the visit.
(v) The individual must provide an approved SF123 as authorization for removal.
(vi) DLA Disposition Services sites will release surplus property to authorized donees upon receipt of a properly completed and approved SF 123 or MRO.
(d)
(i) Comply with the specific governing statute for the type of property and ensure the limitations of the governing statute are observed. In accordance with 10 U.S.C. 2572 and DoD issuances, the Secretary of a Military Department or the Secretary of the Treasury is permitted to donate, lend, or exchange, as applicable, without expense to the United States, books, manuscripts, works of art, historical artifacts, drawings, plans, models and condemned or obsolete combat materiel that are not needed by the Military Services.
(ii) Establish supplementary procedures governing loans, donations, and exchanges.
(iii) May donate, loan or exchange items as identified in paragraph (d)(1) of this section, if the special donation, loan, or exchange action occurs prior to transfer to DLA Disposition Services for disposition. It is not authorized after property has been officially declared excess and transferred to DLA Disposition Services.
(iv) May exchange assets for:
(A) Similar items;
(B) Conservation supplies, equipment, facilities, or systems;
(C) Search, salvage, or transportation services;
(D) Restoration, conservation or preservation services; or
(E) Educational programs when it directly benefits the historical collection of the DoD Components.
(v) May not make an exchange unless the monetary value of the property transferred or services provided to the United States under the exchange is not less than the value of the property transferred by the United States. The Secretary concerned may waive this limitation in the case of an exchange for property in which the Secretary determines the item to be received by the United States will significantly enhance the historical collection of the property administered by the Secretary.
(vi) Will not incur costs in connection with loans or gifts. However, the DoD Component concerned may, without cost to the recipient, DEMIL, prepare, and transport within the CONUS items authorized for donation to a recognized war veterans' association in accordance with DoD 4160.28-M Volumes 1-3 if the DoD Component determines this can be accomplished as a training mission, without additional expenditures for the unit involved.
(vii) Will maintain official records of all DoD materiel loaned including physical inventory, record reconciliation, and management reporting specified in the inventory management procedures in DoD Manual 4140.01, “DoD Supply Chain Materiel Management Procedures” (available at
(2)
(ii) A soldiers' monument association.
(iii) An incorporated museum or memorial that is operated by a historical society, a historical institution of a State or foreign nation, or a nonprofit military aviation heritage foundation or association incorporated in a State.
(iv) An incorporated museum that is operated and maintained for educational purposes only and the charter of which denies it the right to operate for profit.
(v) A post of the Veterans of Foreign Wars of the United States or the American Legion or a unit of any other recognized war veterans' association.
(vi) A local or national unit of any war veterans' association of a foreign nation recognized by the national government of that nation (or by the government of one of the principal political subdivisions of that nation).
(vii) A post of the Sons of Veterans Reserve.
(3)
(i) Sponsored by a Military Department.
(ii) Evaluated based on its size, purpose, the type and scope of services it renders to veterans, and composed of honorably discharged American soldiers, sailors, airmen, marines, or coastguardsmen.
(4)
(i) Meet State (or equivalent foreign national) criteria for not-for-profit museums.
(ii) Have an existing facility suitable for the display and protection of the type of property desired for loan or donation. If the requester has a facility under construction that will meet those requirements, interim eligibility may be granted.
(iii) Have a professional staff that can care for and accept responsibility for the loaned or donated property.
(iv) Have assets that, in the determination of the loaning or donating service, indicate the capability of the loaner and the borrower to provide the required care and security of historical property.
(5)
(i) Limit donations, loans, or exchanges to property stipulated by 10
(ii) Approve the loan, donation, or exchange; process requests for variations from the original agreement; and maintain official records of all donation, loan, and exchange agreements. The approval of exchanges may be delegated at the discretion of the Secretary concerned, and is encouraged for low-dollar transactions.
(iii) Establish controls for determining compliance by the recipient organization with the display, security, and usage criteria provided in the loan and donation agreements.
(iv) Provide disposition instructions to the recipient organization when loaned or donated property is no longer needed or authorized for continued use.
(v) Establish conditions for making donations, loans, or exchanges.
(vi) Establish a process (
(vii) Ensure that correspondence regarding loans, donations, or exchanges is signed by individuals authorized to obligate their organization.
(viii) Ensure appropriate DEMIL of the property as prescribed in DoD 4160.28-M Volumes 1-3 before release. If standard DEMIL criteria cannot be applied without destroying the display value, specific DEMIL actions (such as aircraft structural cuts) may be delayed. The recipient organization must agree to assume responsibility for the property DEMIL action, at no cost to the Government, when the item is no longer desired or authorized for display purposes. The recipient organization may also return the property to the Government via the donating Military Department for full DEMIL action.
(ix) Loan, donate, or exchange property on an “as is, where is” basis and ensure that the recipient organization agrees to pay all costs incident to preparation, handling, and movement of the property. Military Department contact points for the loan, donation, or exchange of property are at Table 5 of this section.
(A) Property may not be repaired, modified, or changed at government expense over and above normal preparation for handling and movement, even if reimbursement is offered for services rendered.
(B) Property may not be moved at government expense to a recipient's location or to another location closer to the recipient to prevent or lessen the recipient organization's processing or transportation costs.
(C) No charge will be made for the property itself, but all physical processing of the property for the loan or donation will be the responsibility of the recipient organization. The recipient organization will pay all applicable charges before release of the property.
(x) Record assets on property accountability records before they are loaned, donated, or exchanged.
(xi) Coordinate with the DoS before a donation, loan, or exchange is formalized with a foreign museum.
(xii) Ensure an official authorized to obligate the organization signs a certificate of assurance, as shown at Figure 3 of this section.
(xiii) Ensure proper documentation is finalized in accordance with DoD 4160.28-M Volumes 1-3 before the release of any property to an authorized recipient.
(A) Use the standard loan agreement in the format prescribed by Figure 4 of this section or a similar document providing the same data for accomplishing property loans.
(B) Accomplish property donations made under this authority by use of the conditional deed of gift agreement in the format prescribed in Figure 5 of this section or a similar document providing the same data.
(C) Accomplish property exchanges made under this authority by use of the exchange agreement in the format prescribed in Figure 6 of this section or a similar document providing the same data. Items may not be exchanged until a determination is made that the item is not needed for operational requirements by another Military Department. If the council or similar staff review process considers it unlikely the item in question will be needed by another Military Department, screening may be omitted. A museum of one Military Department may not acquire for the purpose of exchanging historical items being screened by another Military Department museum.
(xiv) Avoid stockpiling condemned or obsolete combat materiel in anticipation of future exchanges. Items that cannot be exchanged within a 2-year period should be processed for disposal.
(xv) Notify exchange recipients that the Department of Defense cannot certify aircraft, components, or parts as airworthy. Aircraft, components, or parts must be certified by the FAA as airworthy before being returned to flight usage. If available, logbooks and maintenance records for FSCAP must accompany the aircraft and FSCAP. If such documentation is not available, or if the aircraft or FSCAP have been crash-damaged or similarly compromised, the aircraft, components, or parts may not be exchanged, unless the FSCAP parts have been removed from the aircraft or component prior to the exchange. Waivers to this FSCAP documentation requirement may be considered on a case-by-case basis and are restricted to “display only” property (not parts); waivers will apply only to the exchange of the whole aircraft, aircraft engines, and aircraft components. The exchange agreement must explicitly cite the lack of documentation.
(xvi) Consider any adverse market impact that may result from the exchange of certain items. The Military Department should consult with outside organizations for market impact advice, as appropriate.
(xvii) Elect to donate property without conditions; for example, when the administrative costs to the Military Department to perform yearly checks would exceed the value of the property. Unconditional donations are restricted to books, manuscripts, works of art, drawings, plans and models, and historical artifacts valued at less than $10,000 that do not require DEMIL (see Figure 7 of this section).
(6)
(7)
(ii) The Secretary of the Army, in accordance with 10 U.S.C. 4683 and Service-unique regulations prescribed by the Secretary, may conditionally lend or donate excess M-1 rifles (not more than 15), slings, and cartridge belts to any eligible organization for use by that organization for funeral ceremonies of a member or former member of the Military Services, and for other ceremonial purposes. If the loaned or donated properties under paragraph (d)(8)(i) of this section are to be used by the eligible organizations for funeral ceremonies of a member or former member of the Military Services, the Secretary may issue and deliver the rifles, together with the necessary accoutrements and blank ammunition, without charge.
(8)
(A) Loans and donations made under this authority will be subject to the same guidelines for donations in accordance with 10 U.S.C. 2572.
(B) If materiel to be loaned or donated is of historic interest, the application will be forwarded through the Navy Curator.
(C) Donations made under this authority must first be referred to the Congress.
(D) Donations and loans made under 10 U.S.C. 7545 will be made with a conditional deed of gift (see Figure 5 of this section for sample wording).
(ii) In accordance with 10 U.S.C. 7306, the Secretary of the Navy, with approval of Congress, may donate obsolete, condemned, or captured Navy ships, boats, and small landing craft to the States, territories, or possessions of
(A) Applications for ships, boats, and small landing craft will be submitted to the Commander, Naval Sea Systems Command (NSEA 00DG), 2531 Jefferson Davis Highway, Arlington, VA 22240-5160.
(B) Before submission of an application, the applicant must locate obsolete, condemned, or captured Navy ships, boats, and small landing craft which are available for transfer.
(iii) Each application will contain:
(A) Type of vessel desired, or in the case of combatant vessels, the official Navy identification of the vessel desired.
(B) Statement of the proposed use to be made of the vessel and where it will be located.
(C) Statement describing and confirming availability of a berthing site and the facilities and personnel to maintain the vessel.
(D) Statement that the applicant agrees to maintain the vessel, at its own expense, in a condition satisfactory to the Department of the Navy, in accordance with instructions that the Department may issue, and that no expense will result to the United States as a consequence of such terms and conditions prescribed by the Department of the Navy.
(E) Statement that the applicant agrees to take delivery of the vessel “as is, where is” at its berthing site and to pay all charges incident to such delivery, including without limitation preparation of the vessel for removal or tow, towing, insurance, and berthing or other installation at the applicant's site.
(F) Statement of financial resources currently available to the applicant to pay the costs required to be assumed by a donee. The statement should include a summary of sources, annual income, and annual expenditures exclusive of the estimated costs attributable to the requested vessel to permit an evaluation of funds available for upkeep of the vessel. In the event the applicant will rely on commitments of donated services and materials for maintenance and use of the vessel, such commitments must be described in detail.
(G) Statement that the applicant agrees that it will return the vessel, if and when requested to do so by the Department of the Navy, during a national emergency, and will not, without the written consent of the Department, use the vessel other than as stated in the application or destroy, transfer, or otherwise dispose of the vessel.
(H) If the applicant asserts it is a corporation or association whose charter or articles of agreement denies it the right to operate for profit, their application must also contain a copy of the organization's bylaws and either:
(
(
(
(
(
(I) If the applicant is not incorporated, their application must also include the citation of the law and a certified copy of the association's charter stating it is empowered to hold property and to be bound by the acts of the proposed signatories to the donation agreement.
(J) If the applicant is not a State, territory, or possession of the United States, a political subdivision or municipal corporation thereof, or the District of Columbia, the application must also include a copy of a determination by the Internal Revenue Service that the applicant is exempt from tax under the Internal Revenue Code.
(K) A notarized copy of the resolution or other action of its governing board or membership authorizing the person signing the application to represent the organization and to sign on its behalf to acquire a vessel.
(L) A signed copy of the assurance of compliance.
(M) A statement that the vessel will be used as a static display only as a memorial or museum and no system aboard the vessel will be activated or permitted to be activated for the purpose of navigation or movement under its own power.
(N) A statement that the galley will not be activated for serving meals.
(iv) Upon receipt, the Navy will determine the eligibility of the applicant to receive a vessel by donation. If eligible, the formal application will be processed and notice of intention to donate presented to the Congress as required by 10 U.S.C. 7306, provided the applicant has presented evidence satisfactory to the government that the applicant has adequate financial means to accomplish all of the obligations required under a donation contract. The Navy will have authority to donate only after the application has been before the Congress for a period of 60 days of continuous session without adverse action by the Congress in accordance with 10 U.S.C. 7306.
(v) All vessels, boats, and service craft, donated in accordance with 10 U.S.C. 7306, will be used as static displays only for use as memorials and cannot be activated for the purpose of navigation or movement under its own power. Donations of vessels under any other authority of this section are subject to certain inspection and certification requirements. Applicants for vessels or service craft will be advised in writing by the office taking action on the applications that, should their request be approved and before operation of the vessel or service craft, one of the following stipulations will apply:
(A) The donee agrees that if the vessel is 65 feet in length or less, it may not be operated without a valid certificate of inspection issued by the U.S. Coast Guard, while carrying more than six passengers, as defined in 46 U.S.C. 2101(21)(B).
(B) The donee agrees that if the vessel is more than 65 feet in length, it may not be operated without a valid certificate of inspection issued by the U.S. Coast Guard.
(vi) In accordance with 10 U.S.C. 7546 and subject to the approval of the Navy Museum Curator, the nameplate or any small article of a negligible or sentimental value from a ship may be loaned or donated to any individual who sponsored that ship provided that such loan or donation will be at no expense to the Navy.
(9)
(10)
(A) For materiel no longer desired or authorized for continued use by a recipient organization, the Military Department will advise the recipient organization if it wants to repossess the property. Regardless of the
(B) Based on type of property, its location, etc., it is not always feasible to require the physical movement of the property to the nearest DLA Disposition Services site. In these cases, the owning Military Department may elect to work with DLA Disposition Services for receipt and sale in-place, when economically feasible.
(ii) Return of property donated to the Navy is subject to the approval of the Curator for the Department of the Navy. Any article, materiel, or equipment, including silver service, loaned or donated to the naval service by any State, group, or organization may be returned to the lender or donee in accordance with 10 U.S.C. 7546. When the owner cannot be located after a reasonable search, or if, after being offered the property, the owner states in writing that the return of the property is not desired, the property will be disposed of in the same manner as other surplus property.
(e)
(1) 42 U.S.C. chapter 68, also known and referred to in this rule as “The Stafford Act” authorizes federal assistance to States, local governments, and relief organizations. Upon declaration by the President of an emergency or a major disaster, under, the Stafford Act, the State receiving the declaration is notified immediately and a notice of the declaration is published in the
(2) Excess personal property may be loaned to State and local governments for use or distribution for emergency or major disaster assistance purposes. Such uses may include the restoration of public facilities that have been damaged as well as the essential rehabilitation of individuals in need of major disaster assistance. The availability of Federal assistance under the Stafford Act is subject to the time periods prescribed in FEMA regulations.
(f)
(1) Under an educational partnership (or other) agreement, and consistent with 10 U.S.C. 2194, the Secretary of Defense authorized the director of each defense laboratory to enter into one or more educational partnership agreements with U.S. educational institutions for the purpose of encouraging and enhancing study in scientific disciplines at all levels of education. The educational institutions will be local educational agencies, colleges, universities, and any other nonprofit institutions that are dedicated to improving science, mathematics, and engineering education. The point of contact is the DoD Technology Transfer Program Manager, Suite 1401 Two Skyline Place, 5203 Leesburg Pike, Falls Church, VA 22041-3466.
(2) In accordance with 15 U.S.C. 3710(i), the director of a DoD laboratory may directly transfer (donate) laboratory (
(3) Determinations of property suitable for donation will be made by the head of the laboratory. Property will be screened within the DoD laboratory and scientific community prior to release.
(4) Laboratories should be aware that some property might be environmentally regulated and, if exported, may require a U.S. DoS or Commerce export license, including certain circumstances where exports to foreign parties take place in the U.S. Moreover, some property may require DEMIL. Standard eligibility criteria must be ensured and a screening process for determining trade and security control risk are mandatory.
(a)
(2)
(3)
(4)
(b)
(2)
(3)
(a) This part is composed of several subparts, each containing its own purpose. In accordance with the authority in DoD Directive 5134.12, “Assistant Secretary of Defense for Logistics and Materiel Readiness (ASD(L&MR)),” DoD Instruction 4140.01, “DoD Supply Chain Materiel Management Policy,” and DoD Instruction 4160.28, “DoD Demilitarization (DEMIL) Program,” this part establishes the sequence of processes for the disposition of personal property of the DoD Components.
(b) This subpart:
(1) Implements policy for reutilization, transfer, excess property screening, and issue of surplus property and foreign excess personal property (FEPP), scrap released by qualified recycling programs (QRPs), and non-QRP scrap.
(2) Provides guidance for removing excess material through security assistance programs and foreign military sales (FMS).
(3) Provides detailed instructions for the sale of surplus property and FEPP, scrap released by QRPs, and non-QRP scrap.
(a) This subpart applies to the Office of the Secretary of Defense, the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the Department of Defense (hereinafter referred to collectively as the “DoD Components”).
(b) 41 CFR chapters 101 and 102, also known as the Federal Property Management Regulation and Federal Management Regulation (FPMR and FMR), and 40 U.S.C. subtitle I, also known as the Federal Property and Administrative Services, take precedence over this part if a procedural conflict exists.
Unless otherwise noted, these terms and their definitions are for the purpose of this subpart:
(1) Is abandoned and a diligent effort to determine the owner is unsuccessful.
(2) Is uneconomical to repair or the estimated costs of the continued care and handling of the property exceeds the estimated proceeds of sale.
(3) Has an estimated cost of disposal by A/D that is less than the net sales cost.
(2) Any property for which the USG is obligated to or has an option to take over under any type of contract resulting from changes in the specifications or plans or termination of such contract (or subcontract) before completion of the work, for the convenience of or at the option of the USG.
(2)
(3)
(1)
(2)
(1) Has a flashpoint below 200° F (93° C) closed cup, or is subject to spontaneous heating or is subject to polymerization with release of large amounts of energy when handled,
(2) Has a threshold limit value equal to or below 1,000 parts per million for gases and vapors, below 500 milligrams per cubic meter (mg/m
(3) Causes 50 percent fatalities to test animals when a single oral dose is administered in doses of less than 500 mg per kilogram of test animal weight.
(4) Is a flammable solid as defined in 49 CFR 173.124, or is an oxidizer as defined in 49 CFR 173.127, or is a strong oxidizing or reducing agent with a half cell potential in acid solution of greater than +1.0 volt as specified in Latimer's table on the oxidation-reduction potential.
(5) Causes first-degree burns to skin in short-time exposure or is systematically toxic by skin contact.
(6) May produce dust, gases, fumes, vapors, mists, or smoke with one or more of the characteristics in the course of normal operations.
(7) Produces sensitizing or irritating effects.
(8) Is radioactive.
(9) Has special characteristics which, in the opinion of the manufacturer, could cause harm to personnel if used or stored improperly.
(10) Is hazardous in accordance with 29 CFR part 1910, also known as the Occupational Safety and Health Standards.
(11) Is hazardous in accordance with 49 CFR parts 171 through 179.
(12) Is regulated by the Environmental Protection Agency in accordance with 40 CFR parts 260 through 280.
(1) Requires the use of such equipment.
(2) Requires the use to a significant extent of such equipment in the performance of a service or the furnishing of a product.
It is DoD policy consistent with 41 CFR chapters 101 and 102 that excess DoD property must be screened and redistributed among the DoD Components, and reported as excess to the GSA. Pursuant to 40 U.S.C. 701, DoD will efficiently and economically dispose DoD FEPP.
(a) The Assistant Secretary of Defense for Logistics and Materiel Readiness (ASD(L&MR)), under the authority, direction, and control of the USD(AT&L), and in accordance with DoD Directive 5134.12:
(1) Develops DoD materiel disposition policies, including policies for FEPP.
(2) Oversees the effective implementation of the DoD materiel disposition program.
(3) Approves changes to FEPP procedures as appropriate to support contingency operations.
(b) The Director, Defense Logistics Agency (DLA), under the authority, direction, and control of the Under Secretary of Defense for Acquisition, Technology, and Logistics, through the Assistant Secretary of Defense for Logistics and Materiel Readiness (ASD(L&MR)):
(1) Administers the worldwide Defense Materiel Disposition Program for the reutilization, transfer, screening, issue, and sale of FEPP, excess, and surplus personal property.
(2) Implements guidance issued by the ASD(L&MR) or other organizational elements of the OSD and establishes system concepts and requirements, resource management, program guidance, budgeting and funding, training and career development, management review and analysis, internal control measures, and crime prevention for the Defense Materiel Disposition Program.
(3) Annually provides to ASD(L&MR) a summary of sales proceeds from recycling transactions in accordance with 10 U.S.C. 2577.
(4) Ensures prompt processing of monthly sales proceeds under the QRP to DoD Components for reconciliation of sales proceeds and transactions.
(c) The DoD Component Heads:
(1) Implement the procedures prescribed in this subpart and ensure that supplemental guidance and procedures are in accordance with 41 CFR chapters 101 and 102.
(2) Reutilize, transfer, screen, issue and sell FEPP, excess and surplus personal property according to the procedures in § 273.15(a) and (c).
(3) Treat the disposal of DoD property as an integral part of DoD Supply Chain Management; ensure that disposal actions and costs are a part of “end-to-end” management of items and that disposal of property is a planned event at all levels of their organizations.
(4) Furnish the Director, DLA, with mutually agreed-upon data necessary to administer the Defense Materiel Disposition Program.
(5) Provide administrative and logistics support, including appropriate facilities, for the operations of tenant and related off-site DLA Disposition Services field activities under inter-Service support agreements (ISSAs).
(6) Dispose HP specifically designated as requiring Military Department processing.
(7) Request DLA Disposition Services provide sales services, as needed, for recyclable marketable materials generated as a result of resource recovery programs.
(8) Monitor, with DLA Disposition Services Site personnel, all property sent to landfills to ensure no economically salable property is discarded.
(9) Report, accurately identify on approved turn in documents, and turn in all authorized scrap generations to servicing DLA Disposition Services Sites.
(10) Authorize installation commanders, as appropriate, to sell directly recyclable and other QRP materials, or to consign them to the DLA Disposition Services for sale.
(a)
(ii)
(B) 31 U.S.C. 3711-3720E provides an additional statutory requirement applicable to the sale of personal property.
(C) 48 CFR part 33 provide additional guidance on handling disputes from the sale of personal property.
(D) 48 CFR subpart 9.4 of the Federal Acquisition Regulation (FAR), current edition, provides direction on the debarment or suspension of individuals or entities.
(E) Sales of FEPP, although briefly addressed in the FMR, are managed by the agency head and must be in compliance with foreign policy of the United States and the terms and conditions of any applicable host-nation agreement. For additional information on processing FEPP, see Enclosure 4 to DoD Manual 4160.21, Volume 2.
(F) DoD Directive 3230.3, “DoD Support for Commercial Space Launch Activities” (available at
(2)
(i) The Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98
(ii) The Department of Transportation Maritime Administration has jurisdiction over the disposal of vessels of 1,500 gross tons or more that the Secretary of Transportation determines to be merchant vessels or capable of conversion to merchant use, excluding specified combatant vessels.
(iii) Under the provisions of 10 U.S.C. 2576, the Secretary of Defense may sell designated items (such as pistols, revolvers, shotguns, rifles of a caliber not exceeding .30, ammunition for such firearms, and other appropriate equipment) to State and local law enforcement, firefighting, homeland security, and emergency management agencies, at fair market value if the designated items:
(A) Have been determined to be surplus property.
(B) Are certified as being necessary and suitable for the operation and exclusive use of such agency by the Governor (or such State official as he or she may designate) of the State in which such agency is located.
(C) Do not include used gas masks and any protective body armor.
(iv) DLA Disposition Services provides a sales service to the DoD pursuant to the exchange or sale according to the procedures in DoD Manual 4140.01 that implement the authority in 41 CFR part 102-39; however, general and specific provisions through this method of sale are not addressed in this subpart. More information may be obtained from the DLA Disposition Services Exchange Sale Web site at
(3)
(ii) DoD Components are responsible for disposing of surplus property, FEPP, scrap released by QRPs, and other scrap through sales to the general public and State and local governments through execution of an awarded contract.
(iii) The Military Departments are authorized to sell eligible scrap released by their respective QRPs and non-excess property eligible for exchange or sale without the involvement of DLA Disposition Services in accordance with their internal operating guidance, DoD Manual 4140.01, and 41 CFR chapters 101 and 102.
(iv) DoD Components advertise excess and surplus personal property for sale only after all prescribed screening actions are taken, unless screening is not required. See DoD Manual 4160.21 Volume 4 for exempt items.
(v) Sales actions include planning, merchandising, pre-award reviews, bid evaluation and award, contract administration, proceeds receipt and disbursement, and releasing the property.
(vi) Information on surplus and FEPP sales can be obtained from the DLA Customer Contact Center, accessible 24 hours a day, 7 days a week on the DLA Disposition Services Government Sales Web site at
(vii) Within the CONUS, DLA Disposition Services has partnered with a commercial firm to sell usable, non-hazardous surplus demilitarization (DEMIL) Code A and safe to sell Q property that is not reutilized, transferred, or donated. The commercial venture partner schedules and holds sales of property released to it by DLA Disposition Services. DLA Disposition Services has partnered with a commercial firm to sell scrap property. The scrap venture partner schedules and holds sales of scrap property released to it by DLA Disposition Services.
(viii) DLA Disposition Services conducts the balance of surplus and FEPP sales. This includes hazardous and chemical sales and DEMIL- and mutilation-required property and scrap sales in controlled property groups.
(A) DoD Components implement controls to mitigate security risks associated with the release or disposition of DEMIL Code B MLI and DEMIL Code Q CCL items that are sensitive for reasons of national security. Certain categories of DEMIL Q items that pose no risk to national security will be available for reutilization, transfer, or donation (RTD) and sales following normal procedures. However, only FEPP with DEMIL Code A (no export license requirements except to restricted parties) may be sold in foreign countries that are not restricted parties, in accordance with 15 CFR parts 730 through 774. DEMIL B and DEMIL Q items, including those posing no risk to national security are not permitted for sale.
(
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(B) DoD Components may offer for sale any property designated as unsafe for use as originally intended, with mutilation as a condition of sale. DoD Components incorporate the method and degree of mutilation into the sales offering, as required by an official notification of the safety defects. The sales offering must include a condition of sale stipulating that title of the property cannot pass from the Government to the purchaser until DoD representatives have certified and verified the mutilation has been satisfactorily accomplished and have documented this certification.
(C) SCC Q materiel with Management Code S (as defined in DLM 4000.25-1 is hazardous to public health, safety, or national security. If sold, it must require mutilation as a condition of sale. Property assigned SCC Q with Management Code O may be offered for sale without mutilation as a condition of sale, but the seller must ensure that all sales include a restrictive resale provision. In addition, any sales offerings must indicate that the restrictive resale provision is to be perpetuated to all future sales to deter reentry of the materiel to the DoD supply system.
(D) Hazardous property may be offered for sale with appropriate terms and conditions. Prior to award, DoD Components conduct a pre-award review to determine whether the prospective purchaser meets the responsibility criteria in 41 CFR chapter 102. The prospective purchaser must display the ability to comply with applicable laws and regulations before the DoD Components can make an award.
(E) Only FEPP with DEMIL Code A (no export control requirements except to restricted parties) may be offered for sale in foreign countries that are not restricted parties in accordance with 15 CFR parts 730 through 774 and with additional DoD guidance in DoD 4160.28-M Volumes 1-3. The sales offering must include terms and conditions relating to taxes and duties, import stipulations, and compliance with international and local laws and regulations. See Enclosure 4 to DoD Manual 4160.21, Volume 2 for additional information.
(F) Other types of sales offerings for property requiring special handling must include applicable terms and conditions.
(ix) All persons or organizations are entitled to purchase property offered by DLA Disposition Services except for:
(A) Anyone under contract to conduct a specific sale, their agents or employees, and immediate members of their households.
(B) DoD military and civilian personnel and military and civilian personnel of the United States Coast Guard (USCG) whose duties include any functional or supervisory responsibilities for or within the Defense Materiel Disposition Program, their agents, employees, and immediate members of their households.
(C) Any persons or organizations intending to ship FEPP, excess and surplus personal property to restrictedparties. See
(D) Persons under 18 years of age.
(E) Individuals or firms who are ineligible to be awarded government contracts due to suspension or debarment. See the GSA Excluded Parties List at
(F) Persons or entities who wish to purchase MLI or CCL items who do not meet the requirements to receive an end user certificate (EUC) as specified in 22 U.S.C. 2778
(x) Disposable assets (FEPP, scrap, NAF property, disposable (MAP property, etc.) may not be sold directly or indirectly to restricted parties or any other areas designated by DoD 4160.28-M Volumes 1-3.
(xi) DoD Components will update the DoD IUID Registry when an item of personal property with a UII is declared FEPP, excess and surplus personal property and is subject to reutilization, transfer, or sale. The procedures required to update the DoD IUID Registry are in § 273.9.
(4)
(A) Determine whether to sell as the holding agency or request another agency to sell on behalf of the holding agency.
(B) Ensure the sale complies with the provisions of 40 U.S.C. 549, and any other applicable laws.
(C) Issue internal guidance for utilizing methods of sale stipulated in subchapter B of 41 CFR chapter 102, and promote uniformity of sales procedures.
(D) Obtain appropriate authorization to conduct sales of certain property or under certain conditions (
(E) Ensure that all sales are made after publicly advertising for bids, except as provided for negotiated sales in 41 CFR 102-38.100 through 102-38.125.
(F) Document the required terms and conditions of each sale, including but not limited to those terms and conditions specified in 41 CFR 102-38.75.
(G) Sell personal property upon such terms and conditions as the head of the agency deems appropriate to promote fairness, openness, and timeliness. Standard Government forms (
(H) Assure that only representatives designated in writing by the selling agency as selling agent representatives (SARs) are appointed to approve the sale and bind the United States in a written contractual sales agreement. The DLA Disposition Services equivalent of SARs are SCOs. The selling agency determines the requirements for approval (
(I) Adequately train SARs in regulatory requirements and limitations of authority. Ensure SARs are cognizant in identifying and referring matters relating to fraud, bribery, or criminal collusion to the proper authorities in accordance with 41CFR 102-38.50 and 102-38.225.
(J) Obtain approvals as necessary prior to award of the property (
(K) Be accountable for the care, handling, and associated costs of the
(L) Reconcile property and financial records to reflect the final disposition.
(M) Make the property available to FCAs when a bona fide need exists and when no like items are located elsewhere prior to transfer of title to the property, to the maximum extent practicable.
(N) Subject small quantities of low dollar value property in poor condition to the A/D Economy Formula (see Enclosure 3 to DoD Manual 4160.21, Volume 2). If there is no reasonable prospect of disposing of the property by sale (including a scrap sale), dispose of the property with the A/D processes.
(O) Ensure that the DoD IUID Registry is updated for DoD personal property items marked with a UII in accordance with § 273.6.
(ii)
(A) Carefully consider all factors and determine the best method of sale for personal property utilizing identification, segregation, merchandising, advertising, bid evaluation, and award principles to protect the integrity of the sales process.
(B) Utilize any publicly accessible electronic media for providing information regarding upcoming sales, invitations for bid (including sales terms and conditions), acceptance of bids, and bid results.
(C) Provide direction to the DLA Disposition Services site through its internal operating procedures and automated systems.
(D) Verify that personal property items marked with a UII and offered for sale have been updated in the DoD IUID Registry.
(iii)
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(B)
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(iv)
(A) A description of the property.
(B) The acquisition cost and date. If not known, an estimate of the acquisition cost, identified as such.
(C) The estimated fair market value, including the date of the estimate and name of the estimator.
(D) The name and address of purchaser.
(E) The date of sale.
(F) The gross and net sales proceeds.
(G) A justification for conducting the negotiated sale.
(v)
(A) Retail sales of surplus, FEPP, and abandoned privately owned property may be conducted whenever such a program can effectively and economically be used to supplement other methods of sale. Retail sales must be approved in writing at an agency level on a case-by-case basis, and the approval must specify the quantities and types of property and time period covered. These authorizations are limited to specific situations and types of property for which deviation can be fully justified. In addition:
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(B) Approval in accordance with 41 CFR chapters 101 and 102 is required to sell scrap by the retail sale method.
(C) Only trained cashiers are authorized to collect and deposit proceeds received from a retail sale. Retail sales are open to the public and all USG personnel except:
(
(
(vi)
(B) Property reporting and sale schedules are developed to ensure expeditious property disposal, maximum competition, maximum sale proceeds, good public relations, and uniform workload.
(C) The selling agency will provide advance notice of all proposed or scheduled competitive bid sales (except negotiated) of surplus usable property. This includes property:
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(5)
(i) Bring property offered for sale to the attention of the buying public by free publicity and paid advertising.
(ii) Make every effort to obtain maximum free publicity through sites such as a Government-wide point of entry,
(iii) Employ the amount of paid advertising commensurate with the type and value of property being sold.
(iv) Distribute sale offerings to prospective purchasers before the first day of the inspection period.
(6)
(B) Establish a sales offering file that contains information about the property offered for sale from initiation to bid opening (
(C) Prepare sale offerings to provide prospective purchasers with general information and instructions.
(D) Include in each offering the specific conditions of sale, the contents of which are determined by the selling agency. The SF 114 series may be used to document the terms and conditions of a sale, but their use is not mandatory. Conditions of sale include, but are not limited to:
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(E) DEMIL-required MLI property may not be sold unless DEMIL has been accomplished or it is offered for sale with DEMIL as a condition of sale. Incorporate the method and degree of DEMIL into the sales offering.
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(ii)
(iii)
(iv)
(v)
(B) Acceptable forms of payment include but are not limited to:
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(vi)
(A) By providing to the purchaser a bill of sale.
(B) By notification within a contract clause stipulating when the transfer is affected. For instance:
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(C) By providing certifications required from the buyer prior to a transfer of title. An SF 97, “Certificate of Release of a Motor Vehicle,” (available at
(vii)
(A) If the purchaser fails to cure the default, the selling agency is entitled to collect or retain liquidated damages as specified in the sales offer or contract.
(B) If a bid deposit was required and the bidder secured the deposit with a deposit bond, the selling agency must issue the notice of default to the bidder and the surety company.
(viii)
(7)
(ii) Personal property may be sold to a federal employee whose agency does not prohibit the employees from purchasing such property. Unless allowed by a federal or agency regulation, employees having non-public information regarding property offered for sale may not participate in that sale. This applies to an immediate member of the employee's household.
(8)
(ii) Appointed SARs and SCOs will:
(A) Prepare recommendations for suspension or debarment from the sale of Federal property and acquisition contracts.
(B) Forward them to their respective servicing legal offices.
(C) Prepare reports recommending suspension or debarment using the procedures described in 48 CFR subpart 209.4 of the Defense FAR Supplement, current edition, in all cases where purchasers are recommended for suspension or debarment.
(iii) In addition to applicable guidance in 48 CFR subpart 9.4 and 48 CFR 45.602-1, 52.233-1, and 14.407 of the FAR and 48 CFR subpart 209.4 of the Defense FAR Supplement, current edition, contractors who are suspended, debarred, or proposed for debarment are also excluded from conducting business with the government as agents or representatives of another contractor. Firms or individuals who submit bids on sale solicitations on behalf of suspended or debarred contractors, or who in any other manner conduct business with the government as agents or representatives of suspended or debarred contractors, may be treated as affiliates as described in 48 CFR 9.403 of the FAR, and may be suspended or debarred.
(iv) Parties who violate trade security control (TSC) policies may be recommended for debarment or suspension.
(9)
(ii) Circumstances where the SAR or SCO must initiate action include:
(A) At bid opening. Bidders can bid if they cure the debt prior to the opening.
(B) As the result of monies owed the contractor as a refund.
(C) As a result of monies received for bid deposit.
(D) As a result of failure to make payment for overages, ancillary charges, etc.
(E) As a result of affiliation with suspended bidder.
(iii) Checks received for debts will be deposited immediately and the bidder will not be notified until the check has cleared its bank. Cash or negotiable instruments will be deposited immediately.
(iv) SARs or SCOs will contact the bidder and advise that the monies have been deposited to offset the specific indebtedness.
(v) If a SAR or SCO suspects affiliation, the SAR or SCO will contact the bidder and advise that the monies have been deposited according to the procedures in 31 U.S.C. 3711-3720E for the collection of debts owed to the United States.
(10)
(B) Bidders do not have to use authorized bid forms. The bid may be considered when the bidder agrees to all of the terms and conditions and acknowledges that the offer may result in a binding contract award.
(C) The selling agency must determine that the bidder is a responsible person or represents a responsible entity.
(ii)
(iii)
(B) The selling agency representative may consider late bid modifications to an otherwise successful bid at any time, but only when it makes the terms of the bid more favorable to the government.
(iv)
(B) The selling agency head or designee may delegate the authority to make administrative decisions regarding mistakes in bid to a central authority or alternate. This delegation may not be re-delegated by the authority or alternate.
(C) A signed copy of the administrative determination must be included in the contract file and provided to the Government Accountability Office, when requested.
(v)
(vi)
(vii)
(viii)
(11)
(A) Be appointed by agency heads or their designees to act as selling agents for the USG.
(B) Enter into and administer contracts for the sale of government property pursuant to the provisions of 40 U.S.C. 101
(C) Award and distribute contracts to responsible bidders whose bids conform to the sales offering and are the most advantageous to the government.
(D) Be authorized to reject bids in accordance with paragraph (a)(10)(v) of this section.
(E) Sign under the title of “Sales Agency Representative” or “Sales Contracting Officer.”
(F) Sign all contracting documentation on behalf of the USG.
(G) Be responsible for the proper distribution of sales proceeds.
(ii)
(B) Selling agencies will notify the U.S. Attorney General whenever an award is proposed for personal property with an estimated fair market value of $3 million or more or if the sale involves a patent, process, technique, or invention per 41 CFR 102-38.325. Selling agencies will otherwise comply with all requirements of 41 CFR chapter 102 including but not limited to the prohibition to dispose any such item until confirmation from the U.S. Attorney General that the proposed transaction would not violate antitrust laws.
(C) The head of a selling agency or designee must approve all negotiated sales of personal property. Selling
(iii)
(12)
(ii) Bids are disclosed as they are submitted on spot bids or auctions.
(13)
(i) Disseminating award information.
(ii) Billing.
(iii) Default and liquidation.
(iv) Establishing contract folders, including file maintenance and disposition.
(A) Contract administration files will consist of a sale folder, financial folder, individual contract folder(s), and an unsuccessful bids folder for each sale.
(B) Selling agencies will develop procedures for maintaining, completing, reviewing, and auditing these files. All pertinent documentation, including EUC, licenses, pre-award reviews, etc., must be included in the files.
(C) Documentation found in these files may be subject to 5 U.S.C. 552, also known as the Freedom of Information Act. All Privacy Act, privileged, exempt, classified, For Official Use Only, or sensitive information must be obliterated prior to release to the public.
(v) Collection and distribution of sales proceeds.
(vi) Ensuring all requirements of the contract (
(vii) Making modifications to contracts resulting from changes to the original contract.
(viii) Handling public requests for information.
(ix) Timely review and closure of each contract.
(x) Timely review and closure of each sale.
(14)
(ii) Cashiers must credit sales proceeds in accordance with chapter 5 of Volume 11A of DoD 7000.14-R, “Department of Defense Financial Management Regulations (FMRs)” (available at
(15)
(16)
(ii) Prior to releasing sold property, assigned personnel will:
(A) Verify the sale items to be delivered or shipped to purchasers against the sale documents to prevent theft, fraud, or inappropriate release of property.
(B) When DLA Disposition Services is managing the sale and where an in-place receipt memorandum of understanding (MOU) has been executed, installation commanders will provide, by letter designation and upon request from DLA Disposition Services site, the names, telephone numbers, and titles of those non-DLA Disposition Services site personnel authorized to release property located at their activities. As changes occur, installation commanders will provide additions, deletions, and revisions in writing to DLA Disposition Services.
(C) Weigh property sold by weight at the time of delivery to the purchaser.
(D) Count or measure property sold by unit at the time of delivery.
(iii) Purchasers are required to pay, before delivery, the purchase price of item(s) to be removed, based upon the quantity or weight as set forth in the sale offering, except for term sales. If prepayment of an overage quantity is not practicable or possible, payment will be due upon issuance of a statement of account after release of property. Sales of property to State and local governments do not require payment prior to removal. The DLA Disposition Services contract with its sales partners does not require payment prior to delivery of property to State and local governments only.
(17)
(ii) In many instances, the property remains at a DLA Disposition Services site after the title has been transferred. This property is ineligible for withdrawal to satisfy DoD needs. If the DoD Component intends to pursue purchasing the property from the commercial partner, transactions must be handled between the partner and the DoD Component without intervention from the DLA Disposition Services.
(iii) Pursuant to 41 CFR chapter 102, due to the potential for adverse public relations, every effort will be made to keep withdrawals from sales to a minimum. These efforts will include searching for assets elsewhere in the disposal process. Exceptions to this policy will be implemented only when all efforts to otherwise satisfy a valid need have been exhausted and the withdrawal action is determined to be cost effective and in the best interest of the government. DoD Component heads will ensure that withdrawal authority is stringently controlled and applied.
(iv) Make requests to the selling agency by the most expeditious means. With the exception of ICP or IMM and NMCS orders, requests will provide full justification including a statement that the property is needed to satisfy a valid requirement.
(v) Withdrawals may not be processed subject to property inspection for acceptability. Inspect property before requesting withdrawal.
(vi) Orders submitted by ICPs or IMMs do not require justification statements before award.
(vii) With the exception of ICPs and IMMs, minimum written information
(A) Detailed justification as to why the property is required, including how the property will be used; such as applicability of materiel to active weapons systems.
(B) Mission impact statement from a support, procurement, and funding standpoint if property is not withdrawn from sale (
(C) A summary of efforts made to find assets meeting the requirement from other sources, including consideration of substitute items.
(viii) When the DLA Office of Investigations, TSC Assessment Office, determines that property was incorrectly described, and that TSC or DEMIL requirements are applicable, property will either be withdrawn or a provision made to accomplish TSC or DEMIL, as appropriate. The TSC Assessment Office may request withdrawal of property and suspend further action regarding the property until the matter is resolved in accordance with the procedures in DoD Instruction 2030.08.
(ix) As property moves through the sales cycle, constraints are placed on requests for withdrawals from sale.
(A) The area manager can approve requests for withdrawal during the period between the end of screening and the date the property is referred to DLA Disposition Services for sale cataloging or until a delivery order is signed by the commercial venture partner. The area manager can also approve withdrawals prior to bid opening for items on authorized local sales.
(B) DLA Disposition Services can approve withdrawal requests from date of referral until the property is awarded. DLA Disposition Services can also return requests for withdrawal after award that do not include the required written information.
(x) DLA approval, with DLA legal concurrence, is required on any withdrawal request after the award but before removal.
(xi) When title has passed to the purchaser, the requestor must work directly with the purchaser. This includes commercial venture property. The SAR or SCO will provide contract information when requested.
(18)
(A) The date of the sale.
(B) The DoD Component conducting the sale.
(C) The manner in which the sale was conducted (method of sale).
(D) Description of the military items that were sold or offered for sale.
(E) The purchaser of each item, if awarded.
(F) The stated end-use of each item sold.
(ii) The report is submitted not later than March 31 of each year. The Secretary of Defense is required to submit to the Committee on Armed Services of the House of Representatives and the Committee on Armed Services of the Senate the report required by this section for the preceding fiscal year. DLA Disposition Services includes shipments made during the reporting period to its business partner.
(19)
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(B) Recyclable material includes material diverted from the solid waste stream and the beneficial use of such material. It may be beneficial to use waste material as a substitute for a virgin material in a manufacturing process, as a fuel, or as a secondary material. Examples of material that can be recycled through QRP are provided in Table 1 of this section and those that cannot be recycled through QRP are provided in Table 2 of this section, both from the complete list in DoD Instruction 4715.4.
(C) Continually review each QRP to identify material appropriate for waste stream diversion, explore recycling methods, and identify potential markets. Additional recyclable material includes not only material generating profit, but material whose diversion from the waste stream generate a savings to the Department of Defense in disposal costs, or when diversion is required by State or local law or regulation. Material generated from nonappropriated or personal funds (
(D) Installation commanders authorized by their DoD Component head, as appropriate, may sell directly recyclable and other QRP materials, or consign them to the DLA Disposition Services for sale. If selling directly, installations will:
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(E) Excluded material is identified in Attachment 2 to DoD Instruction 4715.4, which provides a guide of eligible and ineligible materials.
(F) Although scrap recyclable materials do not require formal screening, those purchased with appropriated funds, as surplus property under the FPMR and FMR, are available to meet RTD requirements.
(G) When sold directly by the installation, use proceeds to reimburse the installation level costs incurred in operating the recycling program. After reimbursement of the costs incurred by the installation for operations (
(ii)
(B) The DoD Chief Information Officer (DoD CIO) has the primary responsibility for coordinating DoD issues or views with the Department of Treasury, other Executive department organizations, and the Congress on matters arising from private sector commercial space activities, particularly the operations of commercial ELVs and national security interests.
(C) The DLA Disposition Services is the primary office to conduct CSLA sales following the direction for pricing and disposition as specified in DoD Directive 3230.3 Sales will be by competitive bid to U.S. firms or persons having demonstrated action toward becoming a commercial launch provider. The DoD CIO and the Secretary of the U.S. Air Force (USAF) designated representative will support DLA Disposition Services, as necessary, in the sale or transfer of excess and surplus personal property to the private sector, including the identification of potential bidders and any special sales terms and conditions. The generating activity will assist, as necessary, in completing sales transactions.
(b)
(2)
(ii) In coordination and cooperation with DOS, the Defense Security Cooperation Agency (DSCA) directs, administers, and provides overall procedural guidance for the execution of security cooperation and additional DoD programs in support of U.S. national security and foreign policy objectives; and promotes stable security relationships with friends and allies through military assistance, in accordance with DoD 5105.38-M.
(3)
(4)
(B) FMS transactions are completed by use of letters of offer and acceptance and the procedures specified in DoD 5105.38-M.
(ii)
(iii)
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(B) Unless otherwise directed by the implementing agency or DLA Disposition Services FMS Office:
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(C) In accordance with 22 U.S.C. 2403, construction equipment, including but not limited to tractors, scrapers, loaders, graders, bulldozers, dump trucks, generators, and compressors are not considered EDA for purposes of this section.
(iv)
(v)
(B) 10 U.S.C. 2562 prohibits the sale or transfer of fire equipment to foreign countries and international organizations until RTD has been accomplished. Fire equipment remaining after these periods may be made available to security assistance customers with a certification to DSCA that the property is not defective and has completed all required excess property processes.
(C) DSCA will provide guidance for the transfer of items.
(D) Pricing of FMS is governed by DoD 7000.14-R.
(c)
(ii) The scope of this section includes the RTD screening, ordering, issuing, and shipment of DoD FEPP, excess, and surplus personal property.
(A) These procedures apply to the Military Departments, FCAs, donees, eligible foreign governments and international agencies, and any other activities authorized to screen and order FEPP, excess, and surplus personal property.
(B) See § 273.8 for additional guidance on the DoD HAP, LEAs, DoD or Service museums, National Guard units, Senior Reserve Officer Training Corps (ROTC) units, morale, welfare, recreational activities (MWRAs), the MARS, Civil Air Patrol (CAP), and DoD contractors.
(C) See § 273.8 and paragraph (b) of this section for additional information on foreign governments and international organizations.
(2)
(ii) Customers can electronically request specific NSNs for orders, whether DLA Disposition Services assets are available at the time the need arises. When an asset becomes available in the DLA Disposition Services inventory, an electronic notification will be sent to the customer for initiating an official order. See paragraph (c)(3)(vii) of this section for procedures on the automated want lists.
(iii) The UII mark, if applicable, will not be removed from a personal property item offered for RTD.
(3)
(B) At the end of the DoD exclusive internal screening cycle, DoD excess property (excluding FEPP, scrap and HW) is transmitted to the GSAXcess®, and GSA assumes control of federal agency transfer and donation screening. The property remains in DLA
(C) GSA federal screening is accomplished through the GSAXcess® platform that is a customer interface to the Federal Disposal System (FEDS). DoD personnel may shop in GSAXcess® at any time and search and select property from DoD and other FCAs. Transportation costs for other FCA property are borne by the DoD screener. DLA Disposition Services makes shipping arrangements for DoD orders in GSAXcess® and includes the transportation costs in the cost of the item.
(D) Enclosure 7 to DoD Manual 4160.21, Volume 2 and Enclosure 3 to DoD Manual 4160.21, Volume 4 provides additional information on screening for excess personal property by category.
(E) All references to days are calendar days unless otherwise specified.
(F) With electronic screening, physical tagging of property at a DLA Disposition Services site to place a “hold” until an order has been submitted is no longer authorized.
(G) DLA Disposition Services provides reasonable access to authorized personnel for inspection and removal of excess personal property.
(ii)
(B)
(C)
(D)
(E)
(F) Table 3 of this section summarizes the priority of issue and the timelines associated with screening and issue of property.
(iii)
(B) During contingency operations, the ASD (L&MR) may approve expedited screening timelines and changes to issue priorities.
(iv)
(B) Local screening at the DLA Disposition Services sites is on-site (visual) viewing of excess property. Physical inspection of property may not be possible for assets at depot recycling control points (RCPs), receipts in-place, or remote locations.
(v)
(B) DoD customers must obtain access from GSAXcess® to search and select property. The DoD Accountable (Supply) Property Officer must provide GSA a letter (on official letterhead) or email (from a “.mil” address) requesting access for their representatives and include addresses, phone numbers, email addresses, and DoDAAC of those authorized to select property from GSAXcess®. Customers may select items once the access is granted.
(C) DoD customers who only want to search for available property in GSAXcess® can also register for search only access at
(vi)
(A) Property needed to fulfill emergency orders, (
(B) Backlog situations where usable property is in danger of being damaged by the elements due to a lack of adequate storage and an authorized customer is on location.
(vii)
(B) Customers may submit automated searches for recurring NSNs through the DoD Property Search Web site at
(C) Customers may also submit a “Want List” in GSAXcess®, which can help them locate excess property from civilian agencies.
(viii)
(B) The DoD ICP or IMM will screen these notifications to determine if needs exist. DLA Disposition Services site excesses will be reutilized to satisfy known or projected buy and repair needs.
(C) Orders for property during the internal screening periods will be prepared according to MILSTRIP and submitted to DLA Disposition Services.
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(x)
(B) GSA is the approving authority for EP for non-DEMIL required property within the ZI. DLA Disposition Services is the approving authority for DEMIL-required property within the ZI.
(C) Current automation technology allows items going through EP to be visible on the DLA Disposition Services Web site and GSAXcess®.
(D) In contingency operations the supported Combatant Command has the authority to accelerate screening timelines based on mission requirements and operational tempo.
(xi)
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(B) DoD screeners will further identify themselves as authorized representatives of a DoD Component by means of a current employee or Military personnel identification issued by the DoD activity.
(C) FCA screeners will present current employee identification as valid authorization. This also applies to screeners representing mixed-ownership USG corporations.
(D) Non-federal screeners will present an authorization on the letterhead of the sponsoring activity, identifying the bearer and indicating the nature of the authorization. This letter of authorization will be updated at least annually or as changes occur.
(E) All SEA screeners will present a valid driver's license or other State-approved picture identification or the letter of authorization.
(F) DLA Disposition Services sites will refer problems in identifying screeners to the activity commander. For FCA and donation screeners, refer to the proper GSA regional office.
(xii)
(B) When a prospective donation recipient contacts a DLA Disposition Services site or military installation regarding possible acquisition of surplus property, the individual or organization will be advised to contact the applicable SASP for determination of eligibility and procedures.
(4)
(B) DLM 4000.25-1 requires orders for property on the DLA Disposition Services site's accountable records to be prepared on DD Forms 1348-1A or 1348-2. The use of the DLA Disposition Services Web site allows orders to be processed without hard copies of DD Forms 1348-1A or 1348-2. A separate order is required for each line item on a DLA Disposition Services site's inventory (except batchlots that are grouped together). The shopper will furnish the appropriate information either electronically or by hard copy.
(C) Orders for property in the GSA screening cycle will be submitted through GSAXcess®. Customers are required to complete and submit the SF 122 “Transfer Order Excess Personal Property” to GSA. GSA will then transmit the order to DLA Disposition Services.
(D) DoD activities (other than MWRAs or Services, which are covered in § 273.6) must request Military Department or Defense Agency excess and FEPP through servicing accountable officers or their designated representatives.
(E) See § 273.6 for special guidance affecting USCG ordering.
(F) U.S. Army accountable supply officers should check with their finance accounting office prior to requesting items from DLA Disposition Services. Often, Army customers are billed internally for the items they have ordered from DLA Disposition Services.
(G) The following principles apply to acquiring property from these sources, including Federal regulations, which apply to the Department of Defense, special programs and activities, FCAs, and donees when acquiring excess or surplus personal property:
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(H) The special screening programs will request only property that is authorized by the program or activity accountable officer or program manager, whichever is applicable. If the special screening programs want DLA Disposition Services site to verify the FSC has been authorized before release, the accountable officer or program manager must provide a current authorized FSC list to the DLA Disposition Services site. The removal agent must sign any certification required, acknowledging understanding of rules of disposal, prior to removal of the property.
(I) The Military Department accountable officer who designates DoD individuals to sign orders on their behalf must provide DLA Disposition Services sites with an electronic letter of authorization, identifying those individuals. The template for the letter is on the DLA Disposition Services Web site. It will include the full name, activity, DoDAAC, telephone number, address, and signature of the individuals authorized to sign and authenticate MROs. These individuals may be different from those who are the initial shoppers or those picking up the property.
(ii)
(B) If a DoD activity has an emergency need for a surplus DoD item in the possession of a SASP, it may be requested from that SASP. The acquiring DoD activity must pay any costs of care, handling, and transportation that were incurred by the SASP in acquiring this property.
(C) For requests for property to fill training aid and target need orders, see “Training Aids and Target Requirements” in paragraph 147 of Enclosure 3 of DoD Manual 4160.21, Volume 4.
(iii)
(B) Orders for property received during the GSAXcess® screening period must be submitted according to GSA ordering procedures.
(iv)
(5)
(i) DLA Disposition Services sites will determine the property requested is in as good a condition as it was during screening.
(ii) If the ordered property has materially deteriorated from screening or receipt to inspection for shipment, the DLA Disposition Services site will advise the customer before shipment. The shipment will be suspended pending agreement by the customer that the property will be accepted in its present condition.
(iii) Once ordered, and pending receipt of an approved transfer document or removal of the property, no parts may be removed without prior approval of DLA Disposition Services (for DoD orders) or GSA (for transfers and donations), and agreement by the customer that the property will be accepted in its altered condition.
(6)
(ii) Issue of declared Military Department or Defense Agency FEPP, excess and surplus personal property to DoD users will be on a non-reimbursable basis except when the customer is prohibited by law from acquiring FEPP, excess and surplus property without reimbursement or where reimbursement is required by annotations on the receipt DTID. Issues to the USPS require fair-market value reimbursement.
(iii) The requester will transfer funds to the generating activity without DLA Disposition Services site involvement.
(iv) The DLA Disposition Services site will provide the name of the property requiring reimbursement when it is requested by the DoD or an FCA. The requesting activity and the generating activity must agree on the appropriate amount of funds, and how they will be transferred. When this is accomplished, the generating activity must give the DLA Disposition Services site a letter indicating what property is to be transferred and to whom. The DLA Disposition Services site will file a copy of this letter with the issue document to create an audit trail.
(v) Issues of DoD FEPP, excess, and surplus personal property, other than foreign purchased property and other property identified as reimbursable, will be at no cost to FCAs and to SASPs.
(A) Property purchased with working capital funds is not eligible for reimbursement in the transfer or donation program. GSA may direct transfers be made with reimbursement at fair market value.
(B) Public law may prohibit FCAs from obtaining certain property.
(C) FCAs, for the purpose of issue of excess property, include federal executive agencies other than the DoD; wholly owned government corporations; the Senate; the House of Representatives; the Architect of the Capitol and any activities under their direction; the municipal government of the District of Columbia; or non-federal agencies for whom GSA procures.
(vi) Foreign purchased property reimbursements will be at the acquisition value.
(vii) For special programs and activities, DLA Disposition Services sales to special account fund citations may be required in accordance with Volume 11a, Chapter 5 of DoD 7000.14-R. For DLA Disposition Services to provide timely and accurate reimbursements, the transportation account code address in DLA Transaction Services must be correct and current.
(A) In accordance with DoD 4160.28-M Volumes 1-3, all DoD MLI and Commerce Control List (CCL) personal property, whether located within or outside the United States, will be transferred in accordance with 22 CFR parts 120 through 130 and 15 CFR parts 730 through 774.
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(B) For USML and CCL property, DLA Disposition Services sites will require recipients to sign a statement acknowledging their responsibility to comply with U.S. export laws and regarding regulations. The statement must be signed prior to the release of the
(C) DLA Disposition Services sites may issue DEMIL-required property to approved special programs or GSA eligibility-approved FCAs without DEMIL being accomplished.
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(D) DLA Disposition Services sites may transfer CCL (DEMIL Code Q) and non-DEMIL-required USML (DEMIL Code B) property that may have import and export controls to approved special programs or FCAs. Prior to release of such CCL and non-DEMIL-required USML property, the requesting special program or FCA must provide written notification to the DLA Disposition Services site (see Appendixes 3 and 4 of this section). This notification confirms recipient's understanding that export or import of the CCL or non-DEMIL-required USML property is regulated by the USG and in many cases cannot be transferred (exported, imported, sold, etc.) to a foreign person, entity or foreign country without valid USG license or other authorization.
(viii) GSA reviews and approves each order, each in its respective screening cycle (transfer or donation).
(7)
(B) The DoD Component and special programs have 14 calendar days (15 days from the date on the order) to remove the non-RCP property ordered during the DoD screening cycles.
(C) Transfer (FCA) and donee (State agency) customers are always required to make their own pickup and shipment arrangements for non-RCP property orders and have 21 calendar days to remove non-RCP property ordered during the GSAXcess® screening cycle.
(D) Standard transportation or preferred pick up of the property requested by DoD customers who are allocated property by GSA apply.
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(ii)
(B) FCAs will designate the method of transportation for RCP property ordered using one of the following options:
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(C) FCAs must arrange with the carriers of their choice for shipments in excess of 150 pounds.
(D) Donee (State agency) customers are always required to make their own pickup or shipment arrangements for RCP property orders from designated staging areas.
(8)
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(B) In cases where the cost of the transportation exceeds the acquisition value of the property, DLA Disposition Services sites will evaluate the commodity and its actual value; make a judgment as to its true condition and the priority of the order.
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(C) If the customer determines the shipment is not needed, the customer will initiate cancellation action according to the procedures in DLM 4000.25-1.
(D) The shipper will finance parcel post shipments between DoD agencies without reimbursement.
(ii)
(B) MWRAs not ordering property through a military accountable supply officer, DoD museums, academic institutions, and non-profit organizations for educational purposes, Senior ROTC units and FCAs must pay for transportation costs and must provide a fund citation prior to shipment or pick up of the property.
(C) Only one carrier is authorized per agency, and once the agency has designated a carrier, 30 days notice is required to change a carrier.
(D) FMS customers are responsible for most transportation costs associated with the movement of ordered property.
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(E) HAP orders are shipped by DLA Disposition Services by surface to the central point using the most cost-effective mode (and must remain within the assigned theater). At no time will HAP property be shipped by air unless directed by DLA Disposition Services.
(10)
(ii) When shipments are complete, DLA Disposition Services sites will furnish a copy of the shipping document to the customer. This document confirms shipment. The customer will notify the DLA Disposition Services site if the property is not received within a reasonable period of time. FCAs will only be provided a copy of the SF 122, with annotation of the transportation data, when arrangements for DLA Disposition Services sites to ship the property have been made in advance.
(iii) DLA Disposition Services sites will:
(A) Advise the customer if the property requested is no longer available or of acceptable condition.
(B) Document non-availability by a materiel release denial prepared in accordance with DLM 4000.25-1, if item(s) for an MRO are not available.
(C) Issue a letter for all other non-availability notifications, with a copy to GSA if they approved the order. The letter will contain the following data at a minimum:
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(A) Upon arrival at the DLA Disposition Services site, the individuals will identify themselves, sign a DLA Disposition Services visitor and vehicle register and indicate on the register the DoDAAC represented (for DoD activities) or AAC represented (for non-DoD activities), and the purpose of the visit.
(B) Visitor and vehicle registers will be readily accessible (see paragraph (c) of this section).
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| 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 |