| Page Range | 77231-77566 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 77333 - Notice of Intent To Grant Exclusive Patent License: Lockmasters Incorporated | |
| 80 FR 77563 - Human Rights Day and Human Rights Week, 2015 | |
| 80 FR 77381 - Sunshine Act Meeting Notice | |
| 80 FR 77343 - Sunshine Act Meetings | |
| 80 FR 77379 - Sunshine Act; Notice of Agency Meeting | |
| 80 FR 77316 - Government in the Sunshine Act Meeting Notice | |
| 80 FR 77343 - Sunshine Act Meeting | |
| 80 FR 77329 - Sunshine Act Meetings | |
| 80 FR 77239 - Department of the Treasury Regulations for the Gulf Coast Restoration Trust Fund | |
| 80 FR 77319 - Request for Public Input on Sectoral Dialogues To Inform Work on Standards Cooperation Under the U.S.-India Strategic and Commercial Dialogue | |
| 80 FR 77316 - Certain Steel Nails From the United Arab Emirates: Notice of Court Decision Not in Harmony With the Final Determination and Amended Final Determination of the Less Than Fair Value Investigation | |
| 80 FR 77323 - Environmental Technologies Trade Advisory Committee Public Meeting | |
| 80 FR 77323 - Citric Acid and Certain Citrate Salts From the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2013-2014 | |
| 80 FR 77321 - Wooden Bedroom Furniture From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2014 | |
| 80 FR 77325 - Aluminum Extrusions From the People's Republic of China: Final Results, and Partial Rescission of Countervailing Duty Administrative Review; 2013 | |
| 80 FR 77367 - Endangered Species; Recovery Permit Applications | |
| 80 FR 77374 - Notice of Public Meeting, Pecos District Resource Advisory Council Meeting, New Mexico | |
| 80 FR 77375 - Notice of Application for a Right-of-Way Across Gates of the Arctic National Preserve | |
| 80 FR 77329 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
| 80 FR 77318 - Citric Acid and Certain Citrate Salts: Final Results of Countervailing Duty Administrative Review; 2013 | |
| 80 FR 77380 - License Renewal for Davis-Besse Nuclear Power Station, Unit 1 | |
| 80 FR 77231 - National Organic Program (NOP); Sunset 2015 Amendments to the National List | |
| 80 FR 77315 - Meetings | |
| 80 FR 77352 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 80 FR 77353 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
| 80 FR 77336 - Southern California Edison Co; Notice of Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Protests | |
| 80 FR 77335 - Central Antelope Dry Ranch C LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 80 FR 77335 - FTS Master Tenant 1, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 80 FR 77337 - Emera Maine; Notice of Institution of Section 206 Proceeding and Refund Effective Date | |
| 80 FR 77336 - East Tennessee Natural Gas, LLC; Revised Notice of Schedule for Environmental Review of the Loudon Expansion Project | |
| 80 FR 77334 - Combined Notice of Filings #1 | |
| 80 FR 77343 - Notice to All Interested Parties of the Termination of the Receivership of 10326, Legacy Bank, Scottsdale, Arizona | |
| 80 FR 77341 - Agency Information Collection Activities: Proposed Collection Renewals; Comment Request (3064-0046, 3064-0113, & 3064-0178) | |
| 80 FR 77252 - Drawbridge Operation Regulation; Hoquiam River, Hoquiam, WA | |
| 80 FR 77416 - Agency Information Collection Activity; Withdrawal | |
| 80 FR 77275 - Fisheries of the Exclusive Economic Zone Off Alaska; Reallocation of Pacific Cod in the Central Regulatory Area of the Gulf of Alaska Management Area | |
| 80 FR 77417 - Reasonable Charges for Medical Care or Services; V3.18, 2016 Calendar Year Update and National Average Administrative Prescription Drug Charge Update | |
| 80 FR 77264 - Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries | |
| 80 FR 77405 - 30-Day Notice of Proposed Information Collection: Request for Entry Into Children's Passport Issuance Alert Program | |
| 80 FR 77405 - 30-Day Notice of Proposed Information Collection: Local U.S. Citizen Skills/Resources Survey | |
| 80 FR 77365 - Recovery Policy, RP 9525.7, Labor Costs-Emergency Work | |
| 80 FR 77361 - Changes in Flood Hazard Determinations | |
| 80 FR 77365 - Final Flood Hazard Determinations | |
| 80 FR 77356 - Final Flood Hazard Determinations | |
| 80 FR 77359 - Final Flood Hazard Determinations | |
| 80 FR 77351 - Proposed 2016 Guideline for Prescribing Opioids for Chronic Pain | |
| 80 FR 77384 - New Postal Product | |
| 80 FR 77383 - New Postal Product | |
| 80 FR 77355 - Circulatory System Devices Panel of the Medical Devices Advisory Committee; Notice of Meeting | |
| 80 FR 77277 - Pistachios Grown in California, Arizona, and New Mexico; Increased Assessment Rate | |
| 80 FR 77356 - Customs Brokers User Fee Payment for 2016 | |
| 80 FR 77352 - Board of Scientific Counselors, National Center for Injury Prevention and Control, (BSC, NCIPC) | |
| 80 FR 77377 - Notice of Entering Into a Compact With the Kingdom of Morocco | |
| 80 FR 77317 - Renewable Energy and Energy Efficiency Advisory Committee | |
| 80 FR 77312 - Control Date for the Blueline Tilefish Fishery in Waters North of the Virginia/North Carolina Border | |
| 80 FR 77267 - Fisheries off West Coast States; Pacific Coast Groundfish Fishery Management Plan; Trawl Rationalization Program; Midwater Trawl Requirements | |
| 80 FR 77397 - Proposed Collection; Comment Request | |
| 80 FR 77396 - Submission for OMB Review; Comment Request | |
| 80 FR 77392 - Submission for OMB Review; Comment Request | |
| 80 FR 77398 - Submission for OMB Review; Comment Request | |
| 80 FR 77382 - Approval of Exemption From the Bond/Escrow Requirement Relating to the Sale of Assets by an Employer Who Contributes to a Multiemployer Plan; Harrington Air Systems, LLC and J.C. Cannistraro, LLC | |
| 80 FR 77344 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMB | |
| 80 FR 77355 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Public Comment Request | |
| 80 FR 77376 - Certain Dental Implants; Notice of Correction Concerning Notice of Request for Statements on the Public Interest | |
| 80 FR 77330 - Privacy Act of 1974; System of Records | |
| 80 FR 77404 - Advance Notification Regarding Reporting by State ABLE Programs Under Section 529A of the Internal Revenue Code | |
| 80 FR 77331 - Privacy Act of 1974; System of Records | |
| 80 FR 77415 - Nitto Tire U.S.A, Inc., Receipt of Petition for Decision of Inconsequential Noncompliance | |
| 80 FR 77416 - Designation of One Individual Pursuant to Executive Order 13581, “Blocking Property of Transnational Criminal Organizations” | |
| 80 FR 77311 - Offers of Financial Assistance | |
| 80 FR 77333 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Student Assistance General Provisions-Annual Fire Safety Report | |
| 80 FR 77379 - Arts Advisory Panel Meetings | |
| 80 FR 77349 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 80 FR 77371 - Renewal of Agency Information Collection for Water Delivery and Electric Service Data for the Operation of Irrigation and Power Projects and Systems | |
| 80 FR 77407 - Agency Information Collection Activities; Revision of a Currently-Approved Information Collection: Motor Carrier Identification Report | |
| 80 FR 77408 - Qualification of Drivers; Exemption Applications; Diabetes Mellitus | |
| 80 FR 77236 - Amendments to Rules and Regulations | |
| 80 FR 77376 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
| 80 FR 77380 - Notice of Permits Issued Under the Antarctic Conservation Act of 1978 | |
| 80 FR 77377 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Furnishing of Samples | |
| 80 FR 77399 - Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of Filing of Proposed Rule Change To Make Permanent the Pilot Program Eliminating Minimum Value Sizes for Opening Transactions in New Series of FLEX Options | |
| 80 FR 77374 - Notice of Continuation of Concession Contracts | |
| 80 FR 77375 - Manhattan Project National Historical Park | |
| 80 FR 77392 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending the NYSE Listed Company Manual To Provide That Any Senior Official of a Listed Company With the Rank of Corporate Secretary or Higher Can Sign the Written Request of a Listed Company Seeking To Change Its Designated Market Maker Unit Required by Section 806.01 of the Manual | |
| 80 FR 77384 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Relating to Listing and Trading of Shares of Cumberland Municipal Bond ETF Under NYSE Arca Equities Rule 8.600 | |
| 80 FR 77402 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Certificate of Incorporation of Its Parent Company | |
| 80 FR 77394 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Certificate of Incorporation of Its Parent Company | |
| 80 FR 77314 - Amendment to Notice of Solicitation of Applications for the Rural Energy for America Program | |
| 80 FR 77406 - Request for Comments and Notice of Public Hearing Concerning Policy Recommendations for Deepening the U.S.-Africa Trade and Investment Relationship | |
| 80 FR 77340 - Information Collection Requirement Being Submitted to the Office of Management and Budget for Emergency Review and Approval | |
| 80 FR 77354 - Submission for OMB Review; Comment Request | |
| 80 FR 77369 - Enterprise Rancheria of Maidu Indians of California Liquor Control Statute | |
| 80 FR 77372 - North Fork Rancheria of Mono Indians of California Liquor Control Statute | |
| 80 FR 77253 - Approval and Promulgation of Implementation Plans; Texas; El Paso Particulate Matter Contingency Measures | |
| 80 FR 77255 - Naphthalene Acetates; Pesticide Tolerances | |
| 80 FR 77337 - Official Release of EMFAC2014 Motor Vehicle Emission Factor Model for Use in the State of California | |
| 80 FR 77279 - Airworthiness Directives; Airbus Airplanes | |
| 80 FR 77314 - Guarantee Fee Rates for Guaranteed Loans for Fiscal Year 2016; Maximum Portion of Guarantee Authority Available for Fiscal Year 2016; Annual Renewal Fee for Fiscal Year 2016 | |
| 80 FR 77234 - Establishment of Class E Airspace, Neah Bay, WA | |
| 80 FR 77283 - Proposed Amendment of Class E Airspace; Deer Lodge, MT | |
| 80 FR 77289 - Improving Wireless Emergency Alerts and Community-Initiated Alerting | |
| 80 FR 77284 - Nondiscrimination in Programs or Activities Receiving Federal Assistance from the Environmental Protection Agency | |
| 80 FR 77260 - Polyamide Ester Polymers; Tolerance Exemption | |
| 80 FR 77419 - Renewable Fuel Standard Program: Standards for 2014, 2015, and 2016 and Biomass-Based Diesel Volume for 2017 | |
| 80 FR 77519 - Telemarketing Sales Rule |
Agricultural Marketing Service
Rural Business-Cooperative Service
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Navy Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Coast Guard
Federal Emergency Management Agency
U.S. Customs and Border Protection
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
National Park Service
National Endowment for the Arts
Federal Aviation Administration
Federal Motor Carrier Safety Administration
National Highway Traffic Safety Administration
Surface Transportation Board
Foreign Assets Control Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Agricultural Marketing Service, USDA.
Final rule.
This final rule addresses recommendations submitted to the Secretary of Agriculture (Secretary) by the National Organic Standards Board (NOSB) following their October 2014 meeting. These recommendations pertain to the 2015 Sunset Review of substances on the U.S. Department of Agriculture's (USDA) National List of Allowed and Prohibited Substances (National List). Consistent with the recommendations from the NOSB, this final rule removes two nonorganic agricultural substances from the National List for use in organic handling, fortified cooking wines—marsala wine and sherry wine. This final rule also removes two listings for synthetic substances allowed for use in organic crop production on the National List, streptomycin and tetracycline, as their use exemptions expired on October 21, 2014.
Robert Pooler, Standards Division, National Organic Program, USDA-AMS-NOP, 1400 Independence Ave. SW., Room 2642-So., Ag Stop 0268, Washington, DC 20250-0268.
The National Organic Program (NOP) is authorized by the Organic Foods Production Act of 1990 (OFPA), as amended (7 U.S.C. 6501-6522). The USDA Agricultural Marketing Service (AMS) administers the NOP. Final regulations implementing the NOP, also referred to as the USDA organic regulations, were published December 21, 2000 (65 FR 80548), and became effective on October 21, 2002. Through these regulations, the AMS oversees national standards for the production, handling, and labeling of organically produced agricultural products. Since becoming effective, the USDA organic regulations have been frequently amended, mostly for changes to the National List in 7 CFR 205.601-205.606.
This National List identifies the synthetic substances that may be used and the nonsynthetic substances that may not be used in organic production. The National List also identifies synthetic, nonsynthetic nonagricultural, and nonorganic agricultural substances that may be used in organic handling. The OFPA and the USDA organic regulations, as indicated in § 205.105, specifically prohibit the use of any synthetic substance in organic production and handling unless the synthetic substance is on the National List. Section 205.105 also requires that any nonorganic agricultural substance and any nonsynthetic nonagricultural substance used in organic handling appear on the National List.
As stipulated by the OFPA, recommendations to propose amendment of the National List are developed by the NOSB, operating under the Federal Advisory Committee Act (5 U.S.C. App. 2
The NOSB's recommendations to continue existing exemptions and prohibitions include consideration of public comments and applicable supporting evidence that express a continued need for the use or prohibition of the substance(s) as required by the OFPA. Recommendations to either continue or discontinue an authorized exempted synthetic substance (7 U.S.C. 6517(c)(1)) are determined by the NOSB's evaluation of technical information, public comments, and supporting evidence that demonstrate that the substance is: (a) Harmful to human health or the environment; (b) no longer necessary for organic production due to the availability of alternative wholly nonsynthetic substitute products or practices; or (c) inconsistent with organic farming and handling practices.
This rule removes the expired listings of two substances, streptomycin and tetracycline, as their National List exemptions expired on October 21, 2014. After this expiration date, the use of streptomycin and tetracycline in organic production is prohibited. While USDA accredited certifying agents are enforcing the prohibition of streptomycin and tetracycline, delisting of these substances from the National List reduces the likelihood of noncompliant use by organic producers.
Following their October 2014 public meeting, the NOSB submitted their 2015 Sunset Review recommendations to the Secretary. This rule amends the National List to implement two NOSB recommendations to remove the substances, marsala wine and sherry wine, allowed as ingredients in or on processed products labeled as “organic” in § 205.606. The National List exemptions of these substances for use in organic production and handling that were considered by the NOSB during the 2015 Sunset Review process were evaluated according to the evaluation criteria specified on the OFPA (7 U.S.C. 6517-6518).
The following provides an overview of the amendments made to designated sections of the National List regulations:
This final rule amends § 205.601 of the National List regulations by removing (1) the expired substance exemption for streptomycin, for fire blight control in apples and pears only until October 21, 2014, in § 205.601(i)(11), and (2) the expired substance exemption for tetracycline, for fire blight control in apples and pears only until October 21, 2014, in § 205.601(i)(12).
This rule amends § 206.601 of the National List by removing the expired exemption for streptomycin, for fire blight control in apples and pears only until October 21, 2014. In 1995, streptomycin was recommended by the NOSB for addition as a plant disease control to the National List. The NOSB recommendation was accepted by the Secretary and streptomycin was included, as a plant disease control, in the initial final rule establishing the NOP that was published on December 21, 2000 (65 FR 80548). The listing for streptomycin was amended, as recommended by the NOSB, on June 6, 2012 (77 FR 33290) to add an expiration date to the streptomycin annotation: Streptomycin, for fire blight control in apples and pears only until October 21, 2014. This rule removes the listing for streptomycin that expired on October 21, 2014 from § 205.601. Since the prohibition against the use of streptomycin has been effective since October 21, 2014, removal of this exempted substance from the National List has no new regulatory effect.
This rule amends § 206.601 of the National List by removing the expired exemption for tetracycline, for fire blight control in apples and pears only until October 21, 2014. Tetracycline was considered by the NOSB at their October 31-November 4, 1995, meeting. The NOSB recommendation was accepted by the Secretary and tetracycline was included, as a plant disease control, in the initial final rule establishing the NOP that was published on December 21, 2000 (65 FR 80548). Subsequently, as recommended by the NOSB, the listing for tetracycline was amended on August 2, 2012 (77 FR 45903) to add an expiration date to the tetracycline annotation: Tetracycline, for fire blight control in apples and pears only until October 21, 2014. This rule removes the exempted listing for tetracycline from § 205.601 that expired on October 21, 2014. Since the prohibition against the use of tetracycline has been effective since October 21, 2014, the removal of this exempted substance from the National List has no new regulatory effect.
This final rule amends § 205.606 of the National List by removing two substance exemptions listed in § 205.606(g): Fortified cooking wines, (1) marsala, (2) sherry.
This rule implements two NOSB recommendations from their 2015 Sunset review that were submitted to the Secretary on October 30, 2014. During their 2015 Sunset Review, the NOSB determined that two substance exemptions for marsala wine and sherry wine included on § 205.606 of the National List are no longer necessary for organic handling.
The USDA organic regulations have included an exemption on the National List for fortified cooking wines as an ingredient for use in organic processed products at § 205.606(g) as follows: Fortified cooking wines, (1) Marsala. In 2007, marsala wine was petitioned for addition to § 205.606 because it was considered a key flavor ingredient that was not commercially available in organic form and quantity. As required by the OFPA, the exemption for marsala wine was considered during the NOSB's 2015 sunset review. During their sunset review deliberation, the NOSB received no public comments supporting the continued need for the use of nonorganic marsala wine in organic processed products. In addition, the NOSB considered evidence that only a few operations use marsala wine as an ingredient in organic processed products. Based upon this information, the NOSB determined that the exemption for marsala wine on § 205.606 is no longer necessary or essential for organic processed products and voted for the removal of marsala wine from the National List, effective on December 14, 2015.
The USDA organic regulations have included an exemption on the National List for fortified cooking wine, sherry wine, as an ingredient for use in organic processed products at § 205.606(g) as follows: Fortified cooking wines, (2) Sherry. In 2007, sherry wine was petitioned for addition to § 205.606 because it was considered a key flavor ingredient that was not commercially available in organic form or quantity. As required by the OFPA, the exemption for sherry wine was considered during the NOSB's 2015 sunset review. During their sunset review deliberation, the NOSB received no public comments supporting the continued need for the use of nonorganic sherry wine in organic processed products. In addition, the NOSB considered evidence that only a few operations use sherry wine as an ingredient in organic processed products. Based upon this information, the NOSB determined that the exemption for sherry wine as listed on § 205.606 is no longer necessary or essential for organic processed products and voted for the removal of sherry wine from the National List, effective on December 14, 2015.
This rule amends § 205.606 by redesignating paragraphs (h) through (z) as (g) through (y), respectively.
Two notices of public meeting with request for comments were published in
OFPA, as amended (7 U.S.C. 6501-6522), authorizes the Secretary to make amendments to the National List based on proposed recommendations developed by the NOSB. Sections 6518(k)(2) and 6518(n) of OFPA authorize the NOSB to develop proposed amendments to the National List for submission to the Secretary and establish a petition process by which persons may petition the NOSB for the purpose of having substances evaluated for inclusion on or deletion from the National List. The National List petition process is implemented under § 205.607 of the USDA organic regulations. The current petition process was published on January 18, 2007 (72 FR 2167) and
This action has been determined to be not significant for purposes of Executive Order 12866, and therefore, has not been reviewed by the Office of Management and Budget.
Executive Order 12988 instructs each executive agency to adhere to certain requirements in the development of new and revised regulations in order to avoid unduly burdening the court system. This final rule is not intended to have a retroactive effect.
States and local jurisdictions are preempted under OFPA from creating programs of accreditation for private persons or State officials who want to become certifying agents of organic farms or handling operations. A governing State official would have to apply to USDA to be accredited as a certifying agent, as described in section 2115(b) of OFPA (7 U.S.C. 6514(b)). States are also preempted under section 2104 through 2108 of OFPA (7 U.S.C. 6503-6507) from creating certification programs to certify organic farms or handling operations unless the State programs have been submitted to, and approved by, the Secretary as meeting the requirements of OFPA.
Pursuant to section 2108(b)(2) of OFPA (7 U.S.C. 6507(b)(2)), a State organic certification program may contain additional requirements for the production and handling of organically produced agricultural products that are produced in the State and for the certification of organic farm and handling operations located within the State under certain circumstances. Such additional requirements must: (a) Further the purposes of OFPA, (b) not be inconsistent with OFPA, (c) not be discriminatory toward agricultural commodities organically produced in other States, and (d) not be effective until approved by the Secretary.
Pursuant to section 2120(f) of OFPA (7 U.S.C. 6519(f)), this rule would not alter the authority of the Secretary under the Federal Meat Inspection Act (21 U.S.C. 601-624), the Poultry Products Inspection Act (21 U.S.C. 451-471), or the Egg Products Inspection Act (21 U.S.C. 1031-1056), concerning meat, poultry, and egg products, nor any of the authorities of the Secretary of Health and Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301-399), nor the authority of the Administrator of EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136-136(y)).
Section 2121 of OFPA (7 U.S.C. 6520) provides for the Secretary to establish an expedited administrative appeals procedure under which persons may appeal an action of the Secretary, the applicable governing State official, or a certifying agent under this title that adversely affects such person or is inconsistent with the organic certification program established under this title. OFPA also provides that the U.S. District Court for the district in which a person is located has jurisdiction to review the Secretary's decision.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires agencies to consider the economic impact of each rule on small entities and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the market. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to the action. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.
Pursuant to the requirements set forth in the RFA, AMS performed an economic impact analysis on small entities in the final rule published in the
Small agricultural service firms, which include producers, handlers, and accredited certifying agents, have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $7,000,000 and small agricultural producers are defined as those having annual receipts of less than $750,000.
According to USDA, National Agricultural Statistics Service (NASS), certified organic acreage exceeded 3.5 million acres in 2011.
No additional collection or recordkeeping requirements are imposed on the public by this rule. Accordingly, OMB clearance is not required by section 350(h) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, Chapter 35, or OMB's implementing regulations at 5 CFR part 1320.
This rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.
AMS received two comments on proposed rule AMS-NOP-15-0015. Only one comment from a consumer addressed the 2015 Sunset review amendments to remove marsala and sherry wines from the National List. The second comment was from a California apple producer and it addressed removing the expired listings, streptomycin and tetracycline, from the National List.
The consumer who commented on removing marsala and sherry wines from the National List agreed with the proposed amendment to prohibit the use of these nonorganic ingredients in foods labeled as organic. During their sunset review of marsala and sherry, the NOSB did not receive comments supporting the continued use of these wines as nonorganic ingredients in organic products. Additionally, since no comments were received opposing the removal of marsala and sherry wines from the National List, AMS is finalizing these amendments as proposed through this final rule.
Additionally, the consumer who supported the removal of marsala and sherry wines also added that nonorganic ingredients should not be used in organic foods. AMS has considered this comment. The USDA organic regulations, in § 205.301(b), requires that a raw or processed agricultural product sold, labeled, or represented as “organic” must contain not less than 95 percent organically produced raw or processed agricultural products. Any remaining product ingredients must be organically produced, unless not commercially available in organic form, or must be nonagricultural substances as listed in § 205.605, or nonorganic agricultural products as listed in § 205.606 on the National List. In essence, the USDA organic regulations requires organic producers or organic handlers to maximize organic ingredients before using nonorganic nonagricultural or nonorganic agricultural that are included on the National List.
The commenter on the proposed removal of expired listings for streptomycin and tetracycline did not agree with this action and did not agree with the prohibition against the use of these antibiotics to control fire blight infestation in apple production. This commenter stated that the prohibition of streptomycin and tetracycline for use in apple production has had a significant impact on organic apple growers in California's central valley. According to this commenter, the alternatives to the use of streptomycin and tetracycline researched in the Pacific Northwest are ineffective in controlling fire blight in California's central valley. The commenter claims the amendment to prohibit the use of these antibiotics to control fire blight created a significant economic advantage for apple growers in the Pacific Northwest. The removal of the expired listings for streptomycin and tetracycline in the proposed rule is essentially a notice of a technical correction since the prohibition on the use of these two substances in organic crop production is already in effect.
The final rule that established the effective date of streptomycin's expiration date as listed in § 205.601(i)(11) was published in the
The final rule that established the effective date of tetracycline's expiration date as listed in § 205.601(i)(12) was published in the
Administrative practice and procedure, Agricultural commodities, Imports, Labeling, Livestock, Reporting and recordkeeping requirements, Soil conservation.
For the reasons set forth in the preamble, 7 CFR part 205 is amended as follows:
7 U.S.C. 6501-6522.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace at U. S. Coast Guard Station Neah Bay Heliport, Neah Bay, WA, to accommodate a new Standard Instrument Approach Procedure developed at the heliport. Controlled airspace is necessary for the safety and management of Instrument Flight Rules (IFR) operations at the heliport.
Effective 0901 UTC, February 4, 2016. The Director of the Federal
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Steve Haga, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA, 98057; telephone (425) 203-4563.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Neah Bay, WA.
On September 29, 2015, the FAA published in the
Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 700 feet above the surface at U.S. Coast Guard Station Neah Bay Heliport, Neah Bay, WA. Establishment of a GPS approach has made this action necessary for the safety and management of IFR operations at the heliport. Class E airspace is established within a 1-mile radius of the U.S. Coast Guard Station Neah Bay Heliport, with a segment extending from the 1-mile radius to 2.5 miles northeast of the heliport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 1-mile radius of U.S. Coast Guard Station Neah Bay Heliport, and within 1 mile each side of the 055° bearing from the heliport extending from the 1-mile radius to 2.5 miles northeast of the heliport.
National Labor Relations Board.
Final rule.
The National Labor Relations Board (NLRB) is issuing a final rule amending its Rules and Regulations to reflect the closure of the Atlanta, Georgia office of the Division of Judges.
The effective date is January 4, 2016.
Gary Shinners, Executive Secretary, 1015 Half Street SE., Washington, DC 20570. Telephone: (202) 273-1067.
The NLRB's Division of Judges (DOJ) currently has 34 administrative law judges, including the chief judge, deputy chief judge, and three associate chief judges, who hear, decide, and settle unfair labor practice cases nationwide. The judges are formally assigned to one of four offices in Washington, DC, New York, NY, San Francisco, CA, and Atlanta, GA, and receive their case assignments through those offices.
The NLRB has decided to close the Atlanta DOJ office and reassign the administrative law judges and clerical staff to other offices. It is doing so for several reasons. First, the office's longtime head, Associate Chief Judge William N. Cates, will be retiring at the end of the year. Second, of the four DOJ offices, the Atlanta office has the smallest number of nonsupervisory judges (four) and clerical employees (two). Third, although assigned to the Atlanta DOJ office, the four judges do not physically work out of that office. Like most NLRB administrative law judges, they telework and travel to the designated hearing sites from their states of residence (Virgina, Tennessee, Texas, and Florida). Fourth, closing the Atlanta DOJ office will save the NLRB the cost of renting that facility.
The four Atlanta DOJ administrative law judges will be reassigned to the Washington, DC DOJ office. They will continue to telework and perform their duties as before, but will receive their case assignments from the Chief Judge or Deputy Chief Judge, and be assisted by the clerical staff, in that office. One of the two administrative professional employees in the Atlanta DOJ office will be reassigned to assist the NLRB's nearby Regional Office in Atlanta. The other administrative professional employee will be relocated to the NLRB Atlanta Regional Office and will continue to provide assistance to the Division of Judges.
Accordingly, consistent with the foregoing, the NLRB is revising §§ 102.24, 102.25, 102.30(c), 102.34, 102.35(b), 102.36, 102.42, and 102.149 of its rules and regulations, and appendix A thereto, to delete the references to the Atlanta DOJ office and to reflect the current structure of the Agency's field organization. Appendix A to part 102 of the Board's Rules and Regulations, which includes a complete listing of the official office hours of the NLRB Headquarters, the Division of Judges, and the Regional and Subregional Offices, was last published in full at 57 FR 4158 (February 4, 1992). Since that time, the Board has published numerous individual amendments to its Statement of Organization and Functions, including 65 FR 53228, 65 FR 64723, 69 FR 31143, 69 FR 74541, 77 FR 72886, 78 FR 44602, 79 FR 69136, and 79 FR 72707. Accordingly, the Board is now publishing Appendix A to Part 102—NLRB Official Office Hours in its entirety because of the number of changes made to the field offices and the age of the last publication.
This action is not subject to the advance notice and comment provisions of the Administrative Procedure Act (5 U.S.C. 553), or the requirements of Executive Order 12866, the Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Labor management relations.
For the reasons set forth above, the NLRB amends part 102 as follows:
Sections 1, 6, National Labor Relations Act (29 U.S.C. 151, 156). Section 102.117 also issued under section 552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 552(a)(4)(A)), and Section 102.117a also issued under section 552a(j) and (k) of the Privacy Act of 1974 (5 U.S.C. 552a(j) and (k)). Sections 102.143 through 102.155 also issued under section 504(c)(1) of the Equal Access to Justice Act, as amended (5 U.S.C. 504(c)(1)).
(a) All motions under §§ 102.22 and 102.29 made prior to the hearing shall be filed in writing with the Regional Director issuing the complaint. All motions for default judgment, summary judgment, or dismissal made prior to the hearing shall be filed in writing with the Board pursuant to the provisions of § 102.50. All other motions made prior to the hearing, including motions to reschedule the hearing under circumstances other than those set forth in § 102.16(a), shall be filed in writing with the chief administrative law judge in Washington, DC, with the associate chief judge in San Francisco, California, or with the associate chief judge in New York, New York, as the case may be. All motions made at the hearing shall be made in writing to the administrative law judge or stated orally on the record. All motions filed subsequent to the hearing, but before the transfer of the case to the Board pursuant to § 102.45, shall be filed with the administrative law judge, care of the chief administrative law judge in Washington, DC, the associate chief judge in San Francisco, or the associate chief judge in New York, as the case may be. Motions shall briefly state the order or relief applied for and the grounds therefor. All motions filed with a Regional Director or an administrative law judge as set forth in this paragraph shall be filed therewith by transmitting three copies thereof together with an affidavit of service on the parties. All motions filed with the Board, including motions for default judgment, summary judgment, or dismissal, shall be filed with the Executive Secretary of the Board in Washington, DC, by transmitting eight copies thereof together with an affidavit of service on the parties. Unless otherwise provided in this part, motions and responses thereto shall be filed promptly and within such time as not to delay the proceeding.
An administrative law judge designated by the chief administrative
(c) At the time and place specified in said order the officer designated to take such deposition shall permit the witness to be examined and cross-examined under oath by all the parties appearing, and his testimony shall be reduced to type-writing by the officer or under his direction. All objections to questions or evidence shall be deemed waived unless made at the examination. The officer shall not have power to rule upon any objections but he shall note them upon the deposition. The testimony shall be subscribed by the witness in the presence of the officer who shall attach his certificate stating that the witness was duly sworn by him, that the deposition is a true record of the testimony and exhibits given by the witness, and that said officer is not of counsel or attorney to any of the parties nor interested in the event of the proceeding or investigation. If the deposition is not signed by the witness because he is ill, dead, cannot be found, or refuses to sign it, such fact shall be included in the certificate of the officer and the deposition may then be used as fully as though signed. The officer shall immediately deliver an original and two copies of said transcript, together with his certificate, in person or by registered or certified mail to the Regional Director or the administrative law judge, care of the chief administrative law judge in Washington, DC, the associate chief judge in San Francisco, California, or the associate chief judge in New York, New York, as the case may be.
The hearing for the purpose of taking evidence upon a complaint shall be conducted by an administrative law judge designated by the chief administrative law judge in Washington, DC, by the associate chief judge in San Francisco, California, or by the associate chief judge in New York, New York, as the case may be, unless the Board or any Member thereof presides. At any time an administrative law judge may be designated to take the place of the administrative law judge previously designated to conduct the hearing. Such hearings shall be public unless otherwise ordered by the Board or the administrative law judge. (49 Stat. 449; 29 U.S.C. 151-166, as amended by (61 Stat. 136; 29 U.S.C. Sup. 151-167), (65 Stat. 601; 29 U.S.C. 158, 159, 168), (73 Stat. 519; 29 U.S.C. 141-168), (88 Stat. 395-397; 29 U.S.C. 152, 158, 169, 183))
(b) Upon the request of any party or the judge assigned to hear a case, or on his or her own motion, the chief administrative law judge in Washington, DC, the associate chief judge in San Francisco, California, or the associate chief judge in New York, New York may assign a judge who shall be other than the trial judge to conduct settlement negotiations. In exercising his or her discretion, the chief judge or associate chief judge making the assignment will consider, among other factors, whether there is reason to believe that resolution of the dispute is likely, the request for assignment of a settlement judge is made in good faith, and the assignment is otherwise feasible. Provided, however, that no such assignment shall be made absent the agreement of all parties to the use of this procedure.
In the event the administrative law judge designated to conduct the hearing becomes unavailable to the Board after the hearing has been opened, the chief administrative law judge in Washington, DC, the associate chief judge in San Francisco, California, or the associate chief judge in New York, New York, as the case may be, may designate another administrative law judge for the purpose of further hearing or other appropriate action. (49 Stat. 449; 29 U.S.C. 151-166, as amended by (61 Stat. 136; 29 U.S.C. Sup. 151-167), (65 Stat. 601; 29 U.S.C. 158, 159, 168), (73 Stat. 519; 29 U.S.C. 141-168), (88 Stat. 395-397; 29 U.S.C. 152, 158, 169, 183))
Any party shall be entitled, upon request, to a reasonable period at the close of the hearing for oral argument, which may include presentation of proposed findings and conclusions, and shall be included in the stenographic report of the hearing. In the discretion of the administrative law judge, any party may, upon request made before the close of the hearing, file a brief or proposed findings and conclusions, or both, with the administrative law judge, who may fix a reasonable time for such filing, but not in excess of 35 days from the close of the hearing. Requests for further extensions of time shall be made to the chief administrative law judge in Washington, DC, to the associate chief judge in San Francisco, California, or to the associate chief judge in New York, New York, as the case may be. Notice of the request for any extension shall be immediately served on all other parties, and proof of service shall be furnished. Three copies of the brief or proposed findings and conclusions shall be filed with the administrative law judge, and copies shall be served on the other parties, and a statement of such service shall be furnished. In any case in which the administrative law judge believes that written briefs or proposed findings of fact and conclusions may not be necessary, he or she shall notify the parties at the opening of the hearing or as soon thereafter as practicable that he or she may wish to hear oral argument in lieu of briefs.
(b) Motions for extensions of time to file motions, documents, or pleadings permitted by § 102.150 or by § 102.152 shall be filed with the chief administrative law judge in Washington, DC, the associate chief judge in San Francisco, California, or the associate chief judge in New York, New York, as the case may be, not later than 3 days before the due date of the document. Notice of the request shall be immediately served on all other parties and proof of service furnished.
(Official Office Hours of the Regional and Subregional Offices are listed in numerical order except that Subregions appear directly under their respective Regions. Official office hours of the field offices also can be found on the NLRB Web site at
By direction of the Board.
Office of the Fiscal Assistant Secretary, Treasury.
Final rule.
The Department of the Treasury is issuing final regulations concerning the investment and use of amounts deposited in the Gulf Coast Restoration Trust Fund, which was established in the Treasury of the United States by the Resources and Ecosystem Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012 (RESTORE Act).
Please send questions by electronic mail to
The RESTORE Act makes funds available for the restoration and protection of the Gulf Coast Region, and certain programs with respect to the Gulf of Mexico, through a trust fund in the Treasury of the United States, known as the Gulf Coast Restoration Trust Fund. The trust fund will contain 80 percent of the administrative and civil penalties paid after July 6, 2012 under the Federal Water Pollution Control Act in connection with the
The Direct Component, administered by Treasury, sets aside 35 percent of the penalties paid into the trust fund for eligible activities proposed by the State of Alabama, the State of Mississippi, the State of Texas, the State of Louisiana and 20 Louisiana parishes, and 23 Florida counties. The Comprehensive Plan Component sets aside 30 percent of the penalties, plus half of all interest earned on trust fund investments, to be managed by a new independent Federal entity called the Gulf Coast Ecosystem Restoration Council (Council). The Council includes members from six Federal agencies or departments and the five Gulf Coast States. One of the Federal members, the Secretary of Commerce, at this time serves as Chairperson of the Council. The Council will direct those funds to projects and programs for the restoration of the Gulf Coast Region, pursuant to a comprehensive plan that is being developed by the Council. Under the Spill Impact Component, entities representing the Gulf Coast States use an additional 30 percent of penalties in the trust fund for eligible activities pursuant to State Expenditure Plans approved by the Council. The remaining five percent of penalties, plus one-half of all interest earned on trust fund investments, will be divided equally between the NOAA RESTORE Act Science Program established by the National Oceanic and Atmospheric Administration (NOAA), an operating unit of the Department of Commerce, and the Centers of Excellence Research Grants Program, administered by Treasury.
On August 15, 2014, Treasury published a comprehensive interim final rule containing procedures for implementing the RESTORE Act. Among its provisions, the procedures allocated amounts to the five components, described the activities that could be funded and the entities entitled to apply for funds, and set forth compliance requirements. Treasury accepted public comment on the comprehensive interim final rule for thirty days. Treasury published a second interim final rule on October 10, 2014, which allocated amounts to Louisiana parishes under one RESTORE Act component, called the Direct Component. Both interim final rules took effect on October 14, 2014.
Treasury received 21 unique comment letters on the comprehensive interim final rule, and no comments on the interim final rule that allocated funds to the Louisiana parishes. Several commenters repeated suggestions made on the proposed rule issued in September 2013, and opined on matters discussed in the preamble to the comprehensive interim final rule, such as the application of the National Environmental Policy Act (NEPA) to RESTORE Act grant programs.
One commenter, a state, acknowledged the benefits of providing funds through grants, but encouraged Treasury to consider using a revenue sharing arrangement. The commenter raised a concern that grant processes are an inefficient means of disbursing funds to meet the goals of the RESTORE Act. Treasury addressed this comment when it published the comprehensive interim final rule. The RESTORE Act imposes conditions on how states use funds provided under the Act, requires Federal oversight, and authorizes Treasury to stop the flow of funds when there is noncompliance. These controls are characteristic of Federal grant programs. The controls required by Treasury's regulations and Federal laws and policies on grants hold recipients accountable to use the funds as required by the RESTORE Act. The public comments Treasury received on the proposed rule and comprehensive interim final rule overwhelmingly support the distribution of RESTORE Act funds through Federal grants. Accordingly, no change has been made in the final rule to address this comment.
Several commenters, particularly public interest groups, requested that Treasury exercise more authority over the selection of projects funded under the RESTORE Act. Some commenters asked Treasury to establish substantive criteria for evaluating project proposals, such as performance goals and preferences for certain kinds of activities. Other commenters proposed that Treasury adopt procedures, such as independent expert reviews, for evaluating synergies and potential conflicts between projects proposed under different components, or to address project proposals that may be controversial.
Treasury considered similar comments during its review of comments on the proposed rule. The Act does not impose uniform criteria for the selection of projects under the Direct Component, Comprehensive Plan Component, and Spill Impact Component, or require the coordination of projects across components. Each component has different eligibility criteria, different processes for selecting activities, and different entities responsible for selecting the activities to be funded. The final rule acknowledges these differences, while still requiring compliance with the Act and Federal laws and policies applying to grants. Under these policies, Federal awards will include an indication of the timing and scope of performance, and may include specific performance goals, indicators, milestones, and expected outcomes. The appropriate vehicle for addressing these project specific requirements is the Federal award agreement.
Beyond what the Act stipulates, Treasury cannot require the Council, NOAA, states, counties, or parishes to coordinate their selection of projects across components in order to achieve particular economic or environmental goals. Treasury encourages voluntary
Several public interest groups also asked Treasury to reconsider its views regarding the application of NEPA to Treasury's activities under the Direct Component and the Centers of Excellence Research Grants Program. In the preamble to the comprehensive interim final rule, we stated that “Treasury does not anticipate that its review of Multiyear Implementation Plans or the issuance of individual grants will require a NEPA review. Other Federal actions connected with activities funded through a RESTORE Act grant, such as issuance of a permit, may require NEPA review by the agency issuing the permit.” 79 FR 48039, 48051 (Aug. 15, 2014).
Treasury's view is based on its limited statutory role for the administration of Direct Component grants and the Centers of Excellence Research Grants Program. The Act gives Treasury no role in project selection or design for the Direct Component. The Act specifies the activities or disciplines that are eligible for funding, and does not explicitly authorize Treasury to reject an activity or discipline, or to require funding of an alternative design, when the activity otherwise complies with the Act and other Federal law. Also, Treasury neither approves nor disapproves Multiyear Implementation Plans. Accordingly, Treasury will review Multiyear Implementation Plans and grant applications to determine whether they satisfy financial and administrative requirements in the Act and these regulations, and apply requirements in the Office of Management and Budget's Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (OMB's Uniform Guidance), 2 CFR part 200, in its review of grant applications.
Because Treasury has a limited role in reviewing Multiyear Implementation Plans and issuing grants, Treasury does not anticipate that its actions will require an Environmental Assessment or Environmental Impact Statement under NEPA. NEPA is designed to help federal agencies consider environmental consequences in their decision-making process. When an agency action is non-discretionary under a statute, the information that a NEPA review provides would not assist the agency's decision-makers. Several commenters urged Treasury to reconsider the application of NEPA to its RESTORE Act grant programs, but no commenter offered an analysis of the RESTORE Act or its legislative history showing where Treasury has the discretion to consider environmental consequences and project alternatives when making grants.
Treasury's limited role does not mean that NEPA will never apply to activities undertaken with funds provided through the Direct Component and Centers of Excellence Research Grants Program. As Treasury stated in the preamble to the comprehensive interim final rule, other Federal actions, such as the issuance of permits, may trigger NEPA review by the Federal regulatory agency. In addition, it is Treasury policy under Treasury Directive 75-02 to fully evaluate its actions to ensure compliance with NEPA requirements and regulations issued by the Council on Environmental Quality, where applicable. As necessary, Treasury will consider NEPA environmental documentation in the context of individual grant applications, if it is determined that Treasury has sufficient discretion to consider environmental consequences and project alternatives.
The final rule contains several technical edits, some of which were suggested by commenters. Substantive comments and changes to the comprehensive interim final rule are described below.
Treasury received several comments requesting a more clear definition of administrative costs. The final rule continues to define
The definition of
One commenter asked Treasury to clarify the definition of
(1) In the Gulf Coast States, the coastal zones defined under section 304 of the Coastal Zone Management Act of 1972 that border the Gulf of Mexico;
(2) Land within the coastal zones described in paragraph (1) that is held in trust by, or the use of which is by law subject solely to the discretion of, the Federal Government or officers or agents of the Federal Government;
(3) Any adjacent land, water, and watersheds, that are within 25 miles of the coastal zone described in paragraphs (1) and (2); and
(4) All Federal waters in the Gulf of Mexico.
Under paragraph 3, the Gulf Coast Region includes those parts of adjacent watersheds that extend up to, but no further than, 25 miles from the coastal zones. An activity is carried out in the Gulf Coast Region when, in the reasonable judgment of the entity applying for a grant, each severable part of the activity is primarily designed to restore or protect that geographic area. See 31 CFR 34.201-203.
In the preamble to the comprehensive interim final rule, Treasury stated that it was deleting a sentence requiring grant recipients to minimize the time between receipt of funds and disbursement, because this requirement is addressed more completely in OMB's Uniform Guidance. A commenter noted that the sentence was not deleted from the rule. Treasury has corrected this inadvertent error in the final rule. Grant recipients with questions about the application of OMB's Uniform Guidance should direct them to the relevant Federal awarding agency.
This section provides that a Gulf Coast State, coastal political subdivision, and coastal zone parish may use amounts available under the Direct Component and Spill Impact Component to satisfy the non-Federal cost-share of an activity that is eligible under §§ 34.201 and 34.203 and authorized by Federal law. Commenters questioned why a similar opportunity is not available for funds made available under the Comprehensive Plan Component and the Centers of Excellence Research Grants Program.
Another commenter noted a provision in the Act stating that the use of trust fund amounts to satisfy the non-Federal share of an eligible activity “shall not affect the priority in which other Federal funds are allocated or awarded.” 33 U.S.C. 1331(t)(1)(N)(ii). The commenter requested that Treasury include this provision in its regulations. Treasury currently sees no need to elaborate on this statutory provision, which does not need a regulation to be effective. If a grant recipient believes that a Federal agency has allocated or awarded funds in violation of this provision, it should raise that concern with the agency providing assistance.
Treasury received several comments about whether particular activities are reimbursable under the Direct Component, such as costs for grant management staff and certain pre-award and planning activity costs. Grant applicants will find detailed information about allowable costs in OMB's Uniform Guidance. In addition, grant applicants can consult information posted on Treasury's RESTORE Act Web page, or contact Treasury's Office of Gulf Coast Restoration for information about particular costs at
One commenter asserted that activities funded under the Spill Impact Component should focus primarily on ecosystem restoration. Treasury's rule closely tracks the statute. The Act clearly provides that funds are available under the Spill Impact Component “for projects, programs, and activities that will improve the ecosystems or economy of the Gulf Coast region,” subject to certain criteria that are included in Treasury's rule. Because Treasury's rule is consistent with the Act, no change is necessary.
One commenter, a member of the Gulf Coast Ecosystem Restoration Council, requested clarification on how state members of the Council can access amounts set aside for the Council's administrative expenses. Treasury's rule does not address this issue. The Council determines how it allocates funds for administrative expenses. Questions about how the Council allocates its funds should be directed to the Council.
In a separate notice of proposed rulemaking, Treasury plans to propose an amendment to this section to change when the 3% limitation is applied to the Council. Under the Act, the Council cannot spend more than three percent of amounts it receives from the Trust Fund on administrative expenses. The current regulation states that the three percent limit is applied to the total amount of funds received by the Council under the Comprehensive Plan Component, beginning with the first fiscal year the Council receives funds through the end of the fourth, or most recent fiscal year, whichever is later. This approach limits the amounts available for administrative expenses to a percentage of amounts drawn down from the Trust Fund in a particular year, which may vary considerably. Because the Council requires more regular and predictable funding for its administrative expenses, Treasury will propose to cap the Council's administrative expenses at three percent of amounts the Council receives under the Comprehensive Plan Component before termination of the Trust Fund. The notice of proposed rulemaking will include a forty-five day comment period. The current rule will remain in effect pending review of the public comments.
Treasury amended this section to add the allocations for Louisiana parishes that Treasury published as an interim final rule at 79 FR 61236 (Oct. 10, 2014). The allocations did not change.
A commenter requested clarification about Treasury's application and disbursement process. Treasury published detailed guidance and application processes and posted materials on Treasury's RESTORE Act Web page, available at
One commenter, a state, requested clarification about the public review and comment process required in 31 CFR 34.303(b)(8). The commenter stated that it can provide adequate opportunities for public review and comment, but cannot guarantee that the public will fully participate in this process. Treasury's rule does not require a state to ensure full participation in the public comment process. The rule is clear that a state must make its Multiyear Implementation Plan available for public review and comment “in a manner calculated to obtain broad-based participation from individuals, businesses, Indian tribes, and non-profit organizations. . . .” Treasury cannot describe in detail the steps that will satisfy this requirement in every case, as the steps may vary for each state, county, or parish. For example, if a large segment of the affected population does not have Internet access, or does not speak English, a state may need to employ other methods to notify the affected population of its plans and the opportunity to provide comment, such as providing reasonable access to public meetings and presentations in language other than English.
One commenter requested guidance about whether modifications to a Multiyear Implementation Plan require a public review and comment period for Multiyear Implementation Plans. In response to this comment, the final rule now requires the same public review and comment period for material changes as for an accepted Multiyear Implementation Plan. Material modifications can only be adopted after consideration of meaningful public comment. Applicants with questions about which modifications are material should contact Treasury's Office of Gulf Coast Restoration.
One commenter requested that Treasury add a sentence to § 34.305, as well as other parts of the rule, requiring a written justification for all sole source procurements and preferences given to individuals and companies. The commenter also asked that Treasury incorporate preferences for small and minority owned businesses. OMB's Uniform Guidance has an extensive discussion on the procurement requirements applying to Federal grants,
Some commenters discussed the need for activities that improve the resiliency of communities, such as funds for workforce development and job creation. While the Act does not require states, counties, or parishes to fund these activities, workforce development and job creation are eligible activities for funding under the Direct Component and the Spill Impact Component. The Act's legislative history explains that workforce development “is intended to include non-profit, university, and community college-based workforce, career and technical training programs. This would also include the identification of projects, research, programs and partnerships with federal, state and local workforce agencies, industry and local stakeholders from economically and socially disadvantaged communities.” S. Rep. No. 112-100, at 8 (2011). This list of activities, while not exclusive, describes the kinds of activities that are eligible for funding. Commenters with suggestions for specific projects should contact the states, counties, and parishes that are developing Multiyear Implementation Plans and Spill Impact State Expenditure Plans.
During implementation of the comprehensive interim final rule, Treasury received questions about the availability of funds for county and local parks. One eligible activity under the Direct Component and Spill Impact Component is “Improvements to or on State parks located in coastal areas affected by the Deepwater Horizon oil spill.” 33 U.S.C. 1321(t)(1)(B)(i)(V). Treasury does not interpret this provision to apply to county and local parks. However, improvements to county and local parks, such as activities that restore and protect natural resources under 33 U.S.C. 1321(t)(1)(B)(i)(I), may fall under other eligible activities.
Treasury has made a clarifying change to this section to indicate that assignees must submit reports as prescribed by the Council or Treasury, and the Council must submit reports as prescribed by Treasury.
Treasury has made a clarifying change to this section to add that the Council must make its records concerning the activities of assignees available to Treasury, including the Treasury Inspector General. This provision will assist Treasury in gathering the information it needs to carry out its supplemental compliance functions under 31 CFR 34.804.
A commenter requested clarification about the public review and comment processes for State Expenditure Plans described in § 34.503(g). The commenter, who submitted a similar comment on § 34.303, is concerned that a state cannot ensure that the public will fully participate in the public review and comment process. As described above, states are not expected to guarantee full public participation in the public review and comment process. Treasury's rule is clear that states must use methods “calculated to obtain broad-based participation from individuals, businesses, Indian tribes, and non-profit organizations.” Treasury cannot describe in detail the methods that will satisfy this requirement in every case, as they may depend on the state and the impacted region or population.
Another commenter asked Treasury to clarify the public review and comment requirements that apply to modifications of a State Expenditure Plan. The final rule now states that material modifications are subject to the same public review and comment requirements, as well as other requirements, that apply to the original plan. States with questions about which modifications are material should contact the Council for guidance.
Treasury has made a clarifying change to this section to indicate that the Council must submit reports as prescribed by Treasury, in order to assist Treasury in fulfilling its supplemental compliance functions under 31 CFR 34.804.
Consistent with changes made to section 34.405, Treasury has amended this section to add that the Council must make available its records concerning the activities of recipients to Treasury, including the Treasury Inspector General.
One state commenter asked Treasury to clarify that each state will receive its full allocation provided by the Act. Treasury's regulations are already clear that each state will receive an equal share of amounts made available under the Centers of Excellence Research Grants Program. To receive its share, each state will apply to Treasury for a grant and specify how the funds will be used, a standard requirement for all Federal grants. Requiring states to identify how they will use Federal funds is necessary to assist the Federal awarding agency in performing oversight, one of the grant management responsibilities described in OMB's Uniform Guidance.
During implementation of the comprehensive interim final rule, Treasury received questions about the public notice requirements applying to the rules and policies for the Centers of Excellence Research Grants Program. Treasury's regulation requires each state to describe the rules and policies for grants it will issue to subrecipients. Each state also must demonstrate the rules and policies that became effective after publication of the comprehensive interim final rule were available for public review and comment for a minimum of 45 days. Many states have longstanding rules and policies that generally apply to grant programs, including competitive project selection and conflict of interest policies. Treasury's regulation does not require states to seek public comment on rules and policies that were effective prior to publication of the comprehensive interim final rule.
One commenter, a state, noted that the certification in § 34.802(c) appears to require that each activity be selected after consideration of comments from a diverse cross-section of the public. The commenter stated that it can provide opportunities for public review and comment, but it cannot guarantee that all segments of the public will participate. Treasury agrees with this comment, and has amended the certification to be consistent with requirements in §§ 34.303(b)(8) and 34.503(g). The amended certification requires grant recipients to certify that each activity is part of a plan that was made available for public review and comment in a manner calculated to obtain broad-based participation from individuals, businesses, Indian tribes, and nonprofit organizations, and that
Treasury has also amended the certification at § 34.803(a) to conform more closely to the language of the statute, and to make clear that the certification can apply to planning activities as well as activities that carry out the restoration or protection of the Gulf Coast Region.
In the preamble to the comprehensive interim final rule, Treasury stated that grants must conform to the requirements in OMB's Uniform Guidance and other Federal laws and policies on grants. These requirements include reports on how grants funds were used. To avoid any inconsistency between these requirements and the reporting requirements in § 34.803(e), Treasury is deleting certain details that were listed in the comprehensive interim final rule.
Two commenters suggested that Treasury impose penalties on Council members that violate the Act or Treasury regulations. Because the Act does not authorize Treasury to impose penalties, the final rule does not adopt this suggestion.
The Regulatory Flexibility Act (5 U.S.C. 601
The collections of information contained in the comprehensive interim final rule were submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), and approved under control number 1505-0250. The final rule does not contain any new collections of information. Under the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB control number.
The rule affects those entities in the five Gulf Coast States that are eligible to receive funding under the RESTORE Act, and is focused on the environmental restoration and economic recovery of the Gulf Coast Region in the aftermath of the
The Congressional Review Act, 5 U.S.C. 801
The Unfunded Mandates Act of 1995 (2 U.S.C. 1531-1538) requires federal agencies to assess the effects of their 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. Treasury believes that the regulatory impact assessment referenced in this preamble provides the analysis required by the Unfunded Mandates Act.
Coastal zone, Fisheries, Grant programs, Grants administration, Intergovernmental relations, Marine resources, Natural resources, Oil pollution, Research, Science and technology, Trusts and trustees, Wildlife.
For the reasons set forth in the preamble, the Department of the Treasury amends 31 CFR subtitle A by revising part 34 to read as follows:
31 U.S.C. 301; 31 U.S.C. 321; 33 U.S.C. 1251
This part describes policies and procedures applicable to the following programs authorized under the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012 (RESTORE Act).
(a) The Gulf RESTORE Program is authorized under section 311(t) of the Federal Water Pollution Control Act (33 U.S.C. 1321(t)), as amended by the RESTORE Act, and includes the following components:
(1) Direct Component (subpart D of this part), administered by the Department of the Treasury.
(2) Comprehensive Plan Component (subpart E of this part), administered by the Gulf Coast Ecosystem Restoration Council.
(3) Spill Impact Component (subpart F of this part), administered by the Gulf Coast Ecosystem Restoration Council.
(b) NOAA RESTORE Act Science Program (subpart G of this part) is administered by the National Oceanic and Atmospheric Administration, and authorized by the RESTORE Act, section 1604, 33 U.S.C. 1321 note.
(c) Centers of Excellence Research Grants Program (subpart H of this part) is administered by the Department of the Treasury, and authorized by the RESTORE Act, section 1605, 33 U.S.C. 1321 note.
As used in this part:
(1) Facilities;
(2) Eligible projects, programs, or planning activities;
(3) Activities related to grant applications, awards, audit requirements, or post-award management, including payments and collections;
(4) The Council's development, publication, and implementation of the Comprehensive Plan and any subsequent amendments;
(5) The Council's development and publication of regulations and procedures for implementing the Spill Impact Component, and the review of State Expenditure Plans submitted under the Spill Impact Component;
(6) Preparation of reports required by the Act;
(7) Establishment and operation of advisory committees; or
(8) Collection and consideration of scientific and other research associated with restoration of the Gulf Coast ecosystem.
(1) In the Gulf Coast States, the coastal zones defined under section 304 of the Coastal Zone Management Act of 1972 that border the Gulf of Mexico;
(2) Land within the coastal zones described in paragraph (1) of this definition that is held in trust by, or the use of which is by law subject solely to the discretion of, the Federal Government or officers or agents of the Federal Government;
(3) Any adjacent land, water, and watersheds, that are within 25 miles of the coastal zone described in paragraphs (1) and (2) of this definition; and
(4) All Federal waters in the Gulf of Mexico.
Treasury will deposit into the Trust Fund an amount equal to 80 percent of all administrative and civil penalties paid after July 6, 2012 by responsible parties in connection with the explosion on, and sinking of, the mobile offshore drilling unit
The Secretary of the Treasury will invest such amounts in the Trust Fund that are not, in the judgment of the Secretary, required to meet needs for current withdrawals. The Secretary may invest in interest-bearing obligations of the United States, having maturities
Interest earned on Trust Fund investments will be available as described in § 34.103(b).
The amounts in the Trust Fund are allocated among the programs in § 34.1.
(a) Available funds in the Trust Fund, other than interest, are allocated as follows:
(1) Thirty-five percent in equal shares for the Gulf Coast States to be used for the Direct Component of the Gulf RESTORE Program. Section 34.302 describes the allocation for each Gulf Coast State.
(2) Thirty percent for the Council to be used for the Comprehensive Plan Component of the Gulf RESTORE Program.
(3) Thirty percent for formula distribution to Gulf Coast States to be used for the Spill Impact Component of the Gulf RESTORE Program.
(4) Two and one-half percent to be used for the NOAA RESTORE Act Science Program.
(5) Two and one-half percent in equal shares for the Gulf Coast States to be used for the Centers of Excellence Research Grants Program.
(b) Within ten days of the close of a Federal fiscal year, available funds equal to the interest earned on the Trust Fund investments will be allocated, as follows:
(1) Twenty-five percent to be used for the NOAA RESTORE Act Science Program.
(2) Twenty-five percent for the Centers of Excellence Research Grants Program.
(3) Fifty percent for the Comprehensive Plan Component of the Gulf RESTORE Program.
Subject to limitations in the Act and these regulations, amounts in the Trust Fund will be available for the direct and indirect expenses of eligible activities without fiscal year limitation.
To the extent not inconsistent with applicable law, Treasury may waive or modify a requirement in the regulations in this part in a single case or class of cases if the Secretary determines, in his or her sole discretion, that the requirement is not necessary for the deposit of amounts into, or the expenditure of amounts from, the Trust Fund. Treasury will provide public notice of any waivers or modifications granted that materially change a regulatory requirement.
This subpart describes policies and procedures regarding eligible activities applicable to the Direct Component, Comprehensive Plan Component, and Spill Impact Component of the Gulf RESTORE Program. Subparts D, E, F, and I of this part describe additional requirements that must be met before an activity can receive funding.
(a) Trust Fund amounts may be used to carry out an activity in whole or in part only if the following requirements are met:
(1) Costs must comply with administrative requirements and cost principles in applicable Federal laws and policies on grants.
(2) The activity must meet the eligibility requirements of the Gulf RESTORE Program as defined in § 34.201, § 34.202, or § 34.203, according to component.
(3) Activities funded through the Direct Component, Comprehensive Plan Component, and Spill Impact Component must not be included in any claim for compensation presented after July 6, 2012, to the Oil Spill Liability Trust Fund authorized by 26 U.S.C. 9509.
(b) A Gulf Coast State, coastal political subdivision, and coastal zone parish may use funds available under the Direct Component or Spill Impact Component to satisfy the non-Federal cost-share of an activity that is eligible under §§ 34.201 and 34.203 and authorized by Federal law.
The following activities are eligible for funding under the Direct Component. Activities in paragraphs (a) through (g) of this section are eligible for funding to the extent they are carried out in the Gulf Coast Region. Direct Component activities are carried out in the Gulf Coast Region when, in the reasonable judgment of the entity applying to Treasury for a grant, each severable part of the activity is primarily designed to restore or protect that geographic area. Applicants must demonstrate that the activity will be carried out in the Gulf Coast Region when they apply for a grant. Activities designed to protect or restore natural resources must be based on the best available science. All Direct Component activities must be included in and conform to the description in the Multiyear Implementation Plan required by § 34.303.
(a) Restoration and protection of the natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches, and coastal wetlands of the Gulf Coast Region.
(b) Mitigation of damage to fish, wildlife, and natural resources.
(c) Implementation of a Federally-approved marine, coastal, or comprehensive conservation management plan, including fisheries monitoring.
(d) Workforce development and job creation.
(e) Improvements to or on state parks located in coastal areas affected by the
(f) Infrastructure projects benefitting the economy or ecological resources, including port infrastructure.
(g) Coastal flood protection and related infrastructure.
(h) Promotion of tourism in the Gulf Coast Region, including promotion of recreational fishing.
(i) Promotion of the consumption of seafood harvested from the Gulf Coast Region.
(j) Planning assistance. Eligible entities under § 34.302 may apply for planning assistance grants to fund preparation and amendment of the Multiyear Implementation Plan.
(k) Administrative costs.
The Council may expend funds that are available under the Comprehensive Plan Component for eligible activities under 33 U.S.C. 1321(t)(2) and (3), including the following:
(a) The Council may expend funds to carry out activities in the Gulf Coast Region that are included in the Comprehensive Plan, as described in 33 U.S.C. 1321(t)(2). An activity selected by the Council is carried out in the Gulf Coast Region when, in the reasonable judgment of the Council, each severable part of the activity is primarily designed to restore or protect that geographic area. The Council must document the basis for its judgment when it selects the activity.
(b) The Council may expend funds to develop and publish the proposed and initial Comprehensive Plans, and to implement, amend, and update the Comprehensive Plan as required by the Act or as necessary.
(c) The Council may expend funds to prepare annual reports to Congress, and other reports and audits required by the Act, these regulations, and other Federal law.
(d) The Council may expend funds to establish and operate one or more advisory committees as may be necessary to assist the Council.
(e) The Council may expend funds to collect and consider scientific and other research associated with restoration of the Gulf Coast ecosystem, including research, observation, and monitoring.
(f) Administrative expenses.
Activities eligible for funding under the Spill Impact Component must meet the eligibility criteria in § 34.201(a) through (k), as well as the following:
(a) The activities must be included in and conform to the description in a State Expenditure Plan required in § 34.503 and approved by the Council. State entities may apply for a grant from the total amount allocated to that state under the Spill Impact Component before the Council has approved the State Expenditure Plan to fund eligible activities that are necessary to develop and submit that plan.
(b) The activities included in the State Expenditure Plan must contribute to the overall economic and ecological recovery of the Gulf Coast.
(c) Activities listed in § 34.201(a) through (g) are eligible for funding from the Spill Impact Component to the extent they are carried out in the Gulf Coast Region. For purposes of this component, an activity is carried out in the Gulf Coast Region when, in the reasonable judgment of the entity developing the State Expenditure Plan under § 34.503, each severable part of the activity is primarily designed to restore or protect that geographic area. State Expenditure Plans must include a demonstration that activities in the plan will be carried out in the Gulf Coast Region.
(a) Of the amounts received by a Gulf Coast State, coastal political subdivision, or coastal zone parish in a grant from Treasury under the Direct Component, or in a grant from the Council under the Comprehensive Plan Component or Spill Impact Component, not more than three percent may be used for administrative costs. The three percent limit is applied to the total amount of funds received by a recipient under each grant. The three percent limit does not apply to the administrative costs of subrecipients. All subrecipient costs are subject to the cost principles in Federal laws and policies on grants.
(b) Of the amounts received by the Council under the Comprehensive Plan Component, not more than three percent may be used for administrative expenses. The three percent limit is applied to the total amount of funds received by the Council, beginning with the first fiscal year the Council receives funds through the end of the fourth, or most recent fiscal year, whichever is later.
(a) Not later than December 1, 2014, and each year thereafter, the Council must prepare and submit to the Secretary of the Treasury an audited financial statement for the preceding Federal fiscal year, covering all accounts and associated activities of the Council.
(b) Each audited financial statement under this section must reflect:
(1) The overall financial position of the accounts and activities covered by the statement, including assets and liabilities thereof.
(2) Results of operations of the Council.
(c) The financial statements must be prepared in accordance with the form and content of the financial statements prescribed by the Director of the Office of Management and Budget for executive agencies pursuant to 31 U.S.C. 3515, consistent with applicable accounting and financial reporting principles, standards, and requirements.
(d) The Treasury Inspector General may conduct audits and reviews of the Council's accounts and activities as the Inspector General deems appropriate.
This subpart describes the policies and procedures applicable to the Direct Component of the Gulf RESTORE Program. The funds made available under this subpart will be in the form of a grant.
Treasury is responsible for awarding and administering grants and grant agreements under this subpart. Treasury will develop and apply policies and procedures consistent with the Act and Federal laws and policies on grants. Treasury also will establish and implement a program to monitor compliance with its grant agreements.
The amounts made available in any fiscal year from the Trust Fund and allocated to this component will be available in equal shares for the Gulf Coast States for expenditure on eligible activities. The following entities are eligible to receive Direct Component grants.
(a) The amounts available to Alabama will be provided directly to the Alabama Gulf Coast Recovery Council, or such administrative agent as it may designate. All administrative duties of the Alabama Gulf Coast Recovery Council must be performed by public officials and employees that are subject to the ethics laws of the State of Alabama.
(b) Of the amounts available to Florida, 75 percent of funding will be provided directly to the eight disproportionately affected counties. Each disproportionately affected county's share is as follows: Bay County, 15.101453044%; Escambia County, 25.334760043%; Franklin County, 8.441253238%; Gulf County, 6.743202296%; Okaloosa County, 15.226456794%; Santa Rosa County, 10.497314919%; Wakulla County, 4.943148294%; and Walton County, 13.712411372%.
(c) Of the amounts available to Florida, 25 percent of funding will be provided directly to the nondisproportionately impacted counties. Each nondisproportionately impacted county's share is as follows: Charlotte County, 5.162%; Citrus County, 4.692%; Collier County, 7.019%; Dixie County, 3.484%; Hernando County, 4.982%; Hillsborough County, 13.339%; Jefferson County, 3.834%; Lee County, 8.776%; Levy County, 3.894%; Manatee County, 6.809%; Monroe County, 8.297%; Pasco County, 7.079%; Pinellas County, 11.002%; Sarasota County, 7.248%; and Taylor County, 4.383%.
(d) Of the amounts available to Louisiana, 70 percent will be provided directly to the Coastal Protection and Restoration Authority Board of Louisiana, through the Coastal Protection and Restoration Authority of Louisiana.
(e) Of the amounts available to Louisiana, 30 percent will be provided directly to the coastal zone parishes. Each coastal zone parish's share is as follows: Ascension, 2.42612%; Assumption, 0.93028%; Calcasieu,
(f) No parish will receive funds until the parish chief executive has certified to the Governor of Louisiana, in a form satisfactory to the Governor or the Governor's designee, that the parish has completed a comprehensive land use plan that is consistent with, or complementary to, the most recent version of the state's Coastal Master Plan approved by the Louisiana legislature.
(g) The amounts available to Mississippi will be provided directly to the Mississippi Department of Environmental Quality.
(h) The amounts available to Texas will be provided directly to the Office of the Governor or to an appointee of the Office of the Governor.
The entities identified in § 34.302 are eligible to apply for their allocation as a grant. Treasury has developed an application process for grants available under this subpart that is consistent with the Act and Federal laws and policies on grants. The application process includes the following requirements:
(a) Before an eligible entity may receive a Direct Component activity grant, the grant applicant must submit a Multiyear Implementation Plan describing each activity for which it seeks funding under the Direct Component. Applications to fund preparation and amendment of the Multiyear Implementation Plan are exempt from this requirement.
(b) For each activity, the Multiyear Implementation Plan must include a narrative description demonstrating:
(1) The need for, purpose, and objectives of the activity;
(2) How the activity is eligible for funding and meets all requirements;
(3) Location of the activity;
(4) Budget for the activity;
(5) Milestones for the activity;
(6) Projected completion dates for the activity;
(7) Criteria the applicant will use to evaluate the success of each activity in helping to restore and protect the Gulf Coast Region impacted by the
(8) The plan was made available for public review and comment for a minimum of 45 days in a manner calculated to obtain broad-based participation from individuals, businesses, Indian tribes, and non-profit organizations; and
(9) Each activity in the plan was approved after consideration of meaningful input from the public. Treasury may require a standard format and additional information in the plans. Plans can be phased and incremental and may be modified later by the applicant. If the applicant has requested or anticipates requesting funding for any part of the activity from other sources, including other components in the Act, the applicant must identify the source, state the amount of funding, and provide the current status of the request. For the State of Louisiana parishes, the applicant must submit information demonstrating compliance with § 34.302(f).
(c) Material modifications to a Multiyear Implementation Plan are subject to all applicable requirements in paragraph (b) of this section.
(d) The applicant must include supporting information in each grant application that:
(1) Proposed activities meet the statutory requirements for eligibility; and
(2) Each activity designed to protect or restore natural resources is based on best available science.
(e) An applicant may satisfy some or all of the requirements in this section and § 34.802(a) through (e) if it can demonstrate in its application to Treasury that before July 6, 2012:
(1) The applicant established conditions to carry out activities that are substantively the same as the requirements in this section and § 34.802(a) through (e).
(2) The applicable activity qualified as one or more of the eligible activities in § 34.201.
Upon determining that the Multiyear Implementation Plan and the grant application meet the requirements of these regulations and the Act, Treasury will execute a grant agreement with the recipient that complies with subpart I of this part, the Act, and other Federal laws and policies on grants.
(a) An activity may be funded in whole or in part if the applicable requirements of subparts C and D of this part are met.
(b) When awarding contracts to carry out an activity under the Direct Component, a Gulf Coast State, coastal political subdivision, or coastal zone parish may give preference to individuals and companies that reside in, are headquartered in, or are principally engaged in business in the state of project execution consistent with Federal laws and policies on grants.
(c) A Gulf Coast State, coastal political subdivision, or coastal zone parish may propose to issue subawards for eligible activities. Recipients that propose to issue subawards must demonstrate their ability to conduct subrecipient monitoring and management, as required by Federal laws and policies on grants.
Recipients must submit reports as prescribed by Treasury.
Recipients must maintain records as prescribed by Treasury, and make the records available to Treasury, including the Treasury Inspector General.
Treasury, including the Treasury Inspector General, may conduct audits and reviews of recipient's accounts and activities relating to the Act as deemed appropriate by Treasury.
This subpart describes the policies and procedures applicable to the Comprehensive Plan Component. The Comprehensive Plan is developed by the Council in accordance with 33 U.S.C. 1321(t)(2) and will include activities the Council intends to carry out, subject to available funding. When selecting activities to carry out in the first three years, except for certain projects and programs that were authorized prior to July 6, 2012, the Council will give highest priority to projects meeting one or more of the criteria in 33 U.S.C. 1321(t)(2)(D)(iii).
(a) After selecting Comprehensive Plan projects and programs to be funded, the Council must assign primary authority and responsibility for overseeing and implementing projects and programs to a Gulf Coast State or Federal agency represented on the Council, which are called
(b) When an assignee's grant or subaward to, or cooperative agreement with, a nongovernmental entity would equal or exceed ten percent of the total amount provided to the assignee for that activity, the Council must publish in the
(1) House of Representatives committees: Committee on Science, Space, and Technology; Committee on Natural Resources; Committee on Transportation and Infrastructure; Committee on Appropriations.
(2) Senate committees: Committee on Environment and Public Works; Committee on Commerce, Science, and Transportation; Committee on Energy and Natural Resources; Committee on Appropriations.
(c) The Council must establish and implement a program to monitor compliance with its grant agreements and interagency agreements.
The Council must publish policies and procedures for administration of Comprehensive Plan Component grants that are consistent with applicable Federal laws and policies on grants. These grant policies and procedures must include uniform guidelines for assignees to use when selecting subrecipients, awarding grants and subawards, and monitoring compliance. The Council must also establish and implement a program to monitor compliance with its grant agreements.
An activity may be funded in whole or in part if the applicable requirements of subparts C and E of this part are met.
Assignees must submit reports as prescribed by the Council or Treasury. In addition, the Council must submit reports as prescribed by Treasury.
Assignees must maintain records as prescribed by the Council and Treasury, and make the records available to the Council and Treasury, including the Treasury Inspector General. In addition, the Council must make its records concerning the activities of assignees available to Treasury, including the Treasury Inspector General.
The Council and Treasury, including the Treasury Inspector General, may conduct audits and reviews of assignee's accounts and activities relating to the Act as any of them deems appropriate.
This subpart describes the policies and procedures applicable to the Spill Impact Component of the Gulf RESTORE Program. The funds made available under this subpart will be in the form of grants.
The Council is responsible for awarding and administering grants under this subpart.
The Council will allocate amounts to the Gulf Coast States based on the Act and regulations promulgated by the Council. The Council will make allocated funds available through grants for activities described in a State Expenditure Plan approved by the Council.
Each Gulf Coast State, through its Governor or the Governor's designee, must submit a State Expenditure Plan to the Council for its approval that describes each activity for which the state seeks funding. The Council must develop requirements for these plans, including the requirements below.
(a) The State Expenditure Plan must be developed by:
(1) In Alabama, the Alabama Gulf Coast Recovery Council.
(2) In Florida, a consortium of local political subdivisions that includes, at a minimum, one representative of each county affected by the
(3) In Louisiana, the Coastal Protection and Restoration Authority of Louisiana, as approved by the Board.
(4) In Mississippi, the Office of the Governor or an appointee of the Office of the Governor.
(5) In Texas, the Office of the Governor or an appointee of the Office of the Governor.
(b) The State Expenditure Plan must describe how it takes into consideration the Comprehensive Plan and is consistent with the goals and objectives of the Comprehensive Plan. In addition, the State Expenditure Plan must describe the processes used:
(1) To evaluate and select activities included in the plan;
(2) To assess the capability of third party entities that will implement activities in the plan;
(3) To prevent conflicts of interest in the development and implementation of the plan;
(4) To obtain public review and comment in accordance with paragraph (g) of this section; and
(5) To verify compliance with the requirements of § 34.203 and this subpart.
(c) For each activity in the State Expenditure Plan, the plan must include a narrative description demonstrating:
(1) The need for, purpose, and objectives of the activity;
(2) How the activity is eligible for funding and meets all requirements of § 34.203 and this subpart;
(3) Location of the activity;
(4) Budget for the activity;
(5) Milestones for the activity;
(6) Projected completion dates for the activity; and
(7) Criteria the applicant will use to evaluate the success of each activity in helping to restore and protect the Gulf Coast Region. Plans can be phased or incremental and may be modified with the Council's approval. If funding has been requested from other sources, including other components of the Act, the plan must identify the source, state how much funding was requested, and provide the current status of the request.
(d) The State Expenditure Plan must demonstrate how the activities in the plan will contribute to the overall economic and ecological recovery of the Gulf Coast, and how each activity that would restore and protect natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches, coastal wetlands or the economy of the Gulf Coast is based on the best available science.
(e) The State Expenditure Plan must demonstrate that activities described in § 34.201(a) through (g) will be carried out in the Gulf Coast Region, as described in § 34.203(c).
(f) No more than 25 percent of funding under the Spill Impact
(1) The ecosystem restoration needs in the state will be addressed by the activities in the proposed plan; and
(2) Additional investment in infrastructure is required to mitigate the impacts of the
(g) Before being submitted to the Council for approval, a State Expenditure Plan must be available for public review and comment for a minimum of 45 days, in a manner calculated to obtain broad-based participation from individuals, businesses, Indian tribes, and non-profit organizations.
(h) If the Council disapproves a State Expenditure Plan, the Council must notify the impacted state in writing and consult with the state to address any identified deficiencies with the plan. If the Council fails to approve or take action within 60 days after the date on which the Council receives the plan, the state may obtain expedited judicial review within 90 days in a United States district court located in the state seeking the review.
(i) The Council must publish guidelines explaining when modifications to a State Expenditure Plan require the Council's approval. Material modifications to a State Expenditure Plan are subject to the requirements of paragraphs (b) through (g) of this section.
The Council must publish policies and procedures for administration of the Spill Impact Component grants that are consistent with applicable Federal laws and policies on grants. The Council must also establish and implement a program to monitor compliance with its grant agreements.
An activity may be funded in whole or in part if the applicable requirements of subparts C and F of this part are met.
Recipients must submit reports as prescribed by the Council or Treasury. In addition, the Council must submit reports as prescribed by Treasury.
Recipients must maintain records as prescribed by the Council and make the records available to the Council, and Treasury, including the Treasury Inspector General. In addition, the Council must make its records concerning the activities of recipients available to Treasury, including the Treasury Inspector General.
The Council and Treasury, including the Treasury Inspector General, may conduct audits and reviews of a recipient's accounts and activities relating to the Act as any of them deem appropriate.
This subpart describes policies and procedures applicable to the NOAA RESTORE Act Science Program. The program's purpose is to carry out research, observation, and monitoring to support, to the maximum extent practicable, the long-term sustainability of the ecosystem, fish stocks, fish habitat, and the recreational, commercial, and charter fishing industries in the Gulf of Mexico.
NOAA is responsible for establishing and administering this program, in consultation with the United States Fish and Wildlife Service. NOAA must develop, publish, and apply policies and procedures for the NOAA RESTORE Act Science Program consistent with the Act, this subpart, and Federal laws and policies on grants. NOAA must monitor compliance with its grant agreements, cooperative agreements, contracts, and agreements funded through the Trust Fund. NOAA and the United States Fish and Wildlife Service will consult with the Regional Gulf of Mexico Fishery Management Council and the Gulf States Marine Fisheries Commission in carrying out the program.
(a) Amounts made available to NOAA may be expended to carry out a program comprised of activities described in section 1604 of the Act. These activities include coordination of science and technology programs and stakeholder engagement, in accordance with section 1604(f) of the Act, as well as the following activities with respect to the Gulf of Mexico:
(1) Marine and estuarine research.
(2) Marine and estuarine ecosystem monitoring and ocean observation.
(3) Data collection and stock assessments.
(4) Pilot programs for fishery independent data and reduction of exploitation of spawning aggregations.
(5) Cooperative research.
(b) NOAA may also expend amounts made available from the Trust Fund for administrative expenses connected with the program. All funds must be expended in compliance with the Act, these regulations, and other applicable law.
None of the Trust Fund amounts may be used for the following activities:
(a) For any existing or planned research led by NOAA, unless agreed to in writing by the grant recipient.
(b) To implement existing regulations or initiate new regulations promulgated or proposed by NOAA.
(c) To develop or approve a new limited access privilege program (as that term is used in section 303A of the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1853(a)]) for any fishery under the jurisdiction of the South Atlantic, Mid-Atlantic, New England, or Gulf of Mexico Fishery Management Councils.
(a) Of the amounts received by NOAA under the NOAA RESTORE Act Science Program, not more than three percent may be used for administrative expenses.
(b) The three percent limit is applied to the total amount of funds received by NOAA, beginning with the first fiscal year it receives funds through the end of the fourth, or most recent fiscal year, whichever is later.
(c) NOAA may seek reimbursement of administrative expenses incurred after the first deposit into the Trust Fund, to the extent permitted by Federal law. Administrative expenses incurred prior to the first deposit into the Trust Fund are not reimbursable.
NOAA must submit reports as prescribed by Treasury.
Recipients and other entities receiving funds under the NOAA RESTORE Act Science Program must maintain records as prescribed by NOAA and make the records available to NOAA.
NOAA and the Treasury Inspector General may conduct audits and reviews of recipient's accounts and activities relating to the Act as either of them deems appropriate.
This subpart describes the policies and procedures applicable to the Centers of Excellence Research Grants Program. The program's purpose is to establish centers of excellence to conduct research only on the Gulf Coast Region. The funds made available to the Gulf Coast States under this subpart will be in the form of a grant.
Treasury is responsible for awarding grants to the Gulf Coast States, which will use the amounts made available to award grants to nongovernmental entities and consortia in the Gulf Coast Region for the establishment of Centers of Excellence. Treasury will develop and apply policies and procedures consistent with this Act and Federal laws and policies on grants. Each Gulf Coast State entity issuing grants must establish and implement a program to monitor compliance with its subaward agreements.
An equal share of funds will be available to each Gulf Coast State to carry out eligible activities. The duties of a Gulf Coast State will be carried out by the following entities:
(a) In Alabama, the Alabama Gulf Coast Recovery Council, or such administrative agent as it may designate.
(b) In Florida, the Florida Institute of Oceanography.
(c) In Louisiana, the Coastal Protection and Restoration Authority Board of Louisiana, through the Coastal Protection and Restoration Authority of Louisiana.
(d) In Mississippi, the Mississippi Department of Environmental Quality.
(e) In Texas, the Office of the Governor or an appointee of the Office of the Governor.
Treasury has developed an application process for grants available to the Gulf Coast States under this subpart that is consistent with the Act and Federal laws and policies on grants. The process includes the following requirements:
(a) Each Gulf Coast State must describe the competitive process that the state will use to select one or more Centers of Excellence. The competitive process must allow nongovernmental entities and consortia in the Gulf Coast Region, including public and private institutions of higher education, to compete. The process must give priority to entities and consortia that demonstrate the ability to establish the broadest cross-section of participants in the grant with interest and expertise in science, technology, and monitoring in the discipline(s) on which the proposal is focused. The process must also guard against conflicts of interest.
(b) Each Gulf Coast State must describe in its application the state rules and policies applying to subawards it will issue under this subpart. At a minimum, these state rules and policies must include the competitive selection process and measures to guard against conflicts of interest.
(c) Each Gulf Coast State must demonstrate in its application that the state rules and policies applying to subawards it will issue under this subpart were published and available for public review and comment for a minimum of 45 days, and that they were approved after consideration of meaningful input from the public, including broad-based participation from individuals, businesses, Indian tribes, and non-profit organizations. These requirements do not apply to state statutes and regulations, or to policies that were in effect prior to August 15, 2014.
(d) Each application must state the amount of funding requested and the purposes for which the funds will be used.
(a) A Gulf Coast State receiving funds under this subpart must establish a grant program that complies with the Act and Federal laws and policies on grants.
(b) Gulf Coast States may use funds available under this subpart to award competitive subawards for the establishment of Centers of Excellence that focus on science, technology, and monitoring in at least one of the following disciplines:
(1) Coastal and deltaic sustainability, restoration, and protection, including solutions and technology that allow citizens to live in a safe and sustainable manner in a coastal delta in the Gulf Coast Region.
(2) Coastal fisheries and wildlife ecosystem research and monitoring in the Gulf Coast Region.
(3) Offshore energy development, including research and technology to improve the sustainable and safe development of energy resources in the Gulf of Mexico.
(4) Sustainable and resilient growth and economic and commercial development in the Gulf Coast Region.
(5) Comprehensive observation, monitoring, and mapping of the Gulf of Mexico.
Any activity that is not authorized under the provisions of § 34.704 is ineligible for funding under this subpart.
Each Gulf Coast State entity must submit the following reports:
(a) An annual report to the Council in a form prescribed by the Council that includes information on subrecipients, subaward amounts, disciplines addressed, and any other information required by the Council. When the subrecipient is a consortium, the annual report must also identify the consortium members. This information will be included in the Council's annual report to Congress.
(b) Reports as prescribed by Treasury.
Recipients must maintain records as prescribed by Treasury and make the records available to Treasury, including the Treasury Inspector General.
Treasury, including the Treasury Inspector General, may conduct audits and reviews of each recipient's accounts and activities relating to the Act as deemed appropriate by Treasury.
This subpart describes procedures applicable to grant agreements used by Treasury, the Council (including Federal agencies carrying out responsibilities for the Council), NOAA, Gulf Coast States, coastal political subdivisions, and coastal zone parishes in making awards under subparts D, E, F, G, and H of this part. It also describes Treasury's authority to inspect records and the Treasury Inspector General's authority under the Act.
The grant agreements used must conform to the Act and Federal laws and policies on grants, including audit requirements.
At a minimum, grant applications and agreements for the Direct Component, Comprehensive Plan Component, and Spill Impact Component must contain the following certifications. The certification must be signed by an authorized senior official of the entity receiving grant funds who can legally bind the organization or entity, and who has oversight for the administration and use of the funds in question. The certification in paragraph (c) of this section does not apply to planning assistance funds for the preparation and amendment of the Multiyear Implementation Plan.
(a) I certify that each activity funded under this Agreement has been designed to plan for or undertake activities to restore and protect the natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches, coastal wetlands, or economy of the Gulf Coast Region.
(b) I certify that each activity funded under this Agreement is designed to carry out one or more of the eligible activities for this component.
(c) I certify that each activity funded under this Agreement was part of a plan made available for public review and comment in a manner calculated to obtain broad-based participation from individuals, businesses, Indian tribes, and nonprofit organizations, and that the activity was selected after consideration of meaningful input from the public, as described in the grant application.
(d) I certify that each activity funded under this Agreement that protects or restores natural resources is based on the best available science, as that term is defined in 31 CFR part 34.
(e) I certify that this recipient has procedures in place for procuring property and services under this award that are consistent with the procurement standards applying to Federal grants. This recipient agrees that it will not request funds under this award for any contract unless this certification remains true and accurate.
(f) I certify that a conflict of interest policy is in effect and covering each activity funded under this Agreement.
(g) I make each of these certifications based on my personal knowledge and belief after reasonable and diligent inquiry, and I affirm that this recipient maintains written documentation sufficient to support each certification made above, and that this recipient's compliance with each of these certifications is a condition of this recipient's initial and continuing receipt and use of the funds provided under this Agreement.
At a minimum, each grant agreement under subparts D, E, F, G, and H of this part must contain the following conditions:
(a) The recipient must immediately report any indication of fraud, waste, abuse, or potentially criminal activity pertaining to grant funds to Treasury and the Treasury Inspector General.
(b) The recipient must maintain detailed records sufficient to account for the receipt, obligation, and expenditure of grant funds. The recipient must track program income.
(c) Prior to disbursing funds to a subrecipient, the recipient must execute a legally binding written agreement with the entity receiving the subaward. The written agreement will extend all the applicable program requirements to the subrecipient.
(d) The recipient must use the funds only for the purposes identified in the agreement.
(e) The recipient must report at the conclusion of the grant period, or other period specified by the Federal agency administering the grant, on the use of funds pursuant to the agreement.
(f) Trust Fund amounts may only be used to acquire land or interests in land by purchase, exchange, or donation from a willing seller.
(g) None of the Trust Fund amounts may be used to acquire land in fee title by the Federal Government unless the land is acquired by exchange or donation or the acquisition is necessary for the restoration and protection of the natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches, and coastal wetlands of the Gulf Coast Region and has the concurrence of the Governor of the state in which the acquisition will take place.
(a) If Treasury determines that a Gulf Coast State, coastal political subdivision, or coastal zone parish has expended funds received under the Direct Component, Comprehensive Plan Component, or Spill Impact Component on an ineligible activity, Treasury will make no additional funds available to that recipient from any part of the Trust Fund until the recipient has deposited in the Trust Fund an amount equal to the amount expended for an ineligible activity, or Treasury has authorized the recipient to expend an equal amount from the recipient's own funds for an activity that meets the requirements of the Act.
(b) If Treasury determines that a Gulf Coast State, coastal political subdivision, or coastal zone parish has materially violated a grant agreement under the Direct Component, Comprehensive Plan Component, or Spill Impact Component, Treasury will make no additional funds available to that recipient from any part of the Trust Fund until the recipient corrects the violation.
(c) As a condition of receiving funds, recipients and subrecipients shall make available their records and personnel to Treasury in order to carry out the purposes of this section.
In addition to other authorities available under the Act, the Office of the Inspector General of the Department of the Treasury is authorized to conduct, supervise, and coordinate audits and investigations of activities funded through grants under the Act.
Coast Guard, DHS.
Notice of temporary deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Simpson Avenue Bridge across the Hoquiam River, mile 0.5, at Hoquiam, WA. The deviation is necessary to accommodate Washington State Department of Transportation's (WSDOT) extensive maintenance and restoration efforts on this bridge. This deviation allows WSDOT to open one leaf of the double leaf bascule bridge when at least two hours of notice is given. The vertical clearance will be reduced to approximately 25 feet at mean high tide, and the horizontal clearance will be reduced to 52 feet.
This deviation is effective from 6 a.m. on December 11, 2015 to 11:59 p.m. on December 31, 2015.
The docket for this deviation, [USCG-2015-1066] is available at
If you have questions on this temporary deviation, call or email the Bridge Administrator, Coast Guard Thirteenth District; telephone 206-220-7282 email
WSDOT has requested a temporary deviation from the operating schedule for the Simpson Avenue Bridge crossing the Hoquiam River, mile 0.5, at Hoquiam, WA. WSDOT requested to only open one leaf of the double leaf bascule bridge when at least two hours of notice is given. WSDOT also requested to reduce the vertical clearance from 35 feet to approximately 25 feet at mean high tide, and reduce the horizontal navigation clearance from 125 feet to 52 feet while operating single leaf.
The normal operating schedule for the Simpson Avenue Bridge operates in accordance with 33 CFR 117.1047, which states the bridge shall open on signal if at least one hour notice is given. Simpson Avenue Bridge is a double leaf bascule bridge and provides 35 feet of vertical clearance above mean high water elevation while in the closed-to-navigation position.
This deviation allows the Simpson Avenue Bridge at mile 0.5 crossing the Hoquiam River, to operate in single leaf, half of the span, to maritime traffic from 6 a.m. on December 11, 2015 to 11:59 p.m. on December 31, 2015. The bridge shall operate in accordance to 33 CFR 117.1047 at all other times.
Vessels able to pass through the bridge in the closed-to-navigation position may do so at anytime. Scaffolding will be erected below the bridge for personnel to work from reducing the vertical clearance to approximately 25 feet while the bridge is in the closed-to-navigation position. The bridge will not be able to open for vessels engaged in emergency response operations during this closure period without a two hour notice.
Waterway usage on this part of the Hoquiam River ranges from tug and barge to small pleasure craft. WSDOT has examined bridge opening logs, and contacted all waterway users that have requested bridge openings throughout the last year. The input WSDOT received from waterway users indicated that this deviation will have no impact on the known users. No immediate alternate route for vessels to pass is available on this part of the river. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridges must return to their regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving under the Federal Clean Air Act (the Act) State Implementation Plan (SIP) revisions submitted by the State of Texas. These revisions pertain to contingency measures for particulate matter in the City of El Paso. The affected contingency measures are the paving of alleys and sweeping of streets.
This final rule is effective on January 13, 2016.
The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2012-0205. All documents in the docket are listed on the
Jeffrey Riley, 214-665-8542,
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
The background for today's action is discussed in detail in our August 19, 2015 proposal (80 FR 50248). In that notice, we proposed to approve revisions to the Texas SIP pertaining to contingency measures for controlling particulate matter (PM) with an aerodynamic diameter less than or equal to a nominal ten micrometers (PM
We are approving revisions to the Texas SIP pertaining to PM
(1) All new alleys must be paved;
(2) Unpaved alleys may not be used for residential garbage and recycling collection; and
(3) The use of recycled asphalt product as defined in section 111.145 and section 111.147(1) may be used as an alternate means of particulate matter control for alleys.
We are also approving revisions to 30 TAC section 111.147(1) that define reclaimed asphalt pavement, and 30 TAC section 111.147(2) that changes the sweeping frequency requirement from four to three times per year in the city limits and from six to four times per week in the El Paso central business district. This action is being taken under section 110 of the Act.
In this rule, we are finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of the revisions to the Texas regulations as described in the Final Action section above. We have 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, the 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 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 Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The 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 February 12, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed 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, Particulate matter, Reporting and recordkeeping requirements.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The revision and addition read as follows:
(c) * * *
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a tolerance for residues of the naphthalene acetate group in or on pomegranate. Interregional Research Project Number 4 (IR-4) requested the tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective December 14, 2015. Objections and requests for hearings must be received on or before February 12, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2014-0769, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0769 in the subject line on the first page of your submission. All objections and requests for a hearing
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0769, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the naphthalene acetates including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with the naphthalene acetates follows.
EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
In this regulatory action, 1-naphthaleneacetic acid is a species of chemical that includes several similar compounds: Naphthaleneacetamide (NAA acetamide), naphthaleneacetic acid, potassium naphthaleneacetate (NAA potassium salt), ammonium naphthaleneacetate (ammonium NAA), sodium naphthaleneacetate (NAA sodium salt), and ethyl naphthaleneacetate (NAA ethyl ester). These chemicals are assessed as a single group and are collectively referred to as the naphthalene acetates (NAA). Hereafter, NAA will be used to refer to the entire naphthalene acetate group. These chemical compounds are structurally related, metabolized to the acid form (by both plants and animals), and are eliminated from the body as glycine and glucuronic acid conjugates within 36 to 48 hours after exposure. EPA has concluded that toxicity testing on any of these compounds should serve for all members of this group of chemicals.
In general, NAA sodium salt was the most toxic form in sub-chronic and chronic studies. Repeated exposure in oral toxicity studies resulted in decreased body weights and body weight gains accompanied by decreased food consumption. The major target organs of sub-chronic and chronic oral exposure were the liver, stomach, and lung. Others symptoms of toxicity from oral exposure included decreased hematocrit and hemoglobin, reduced red blood cell (RBC) count in rats and dogs, and hypocellularity of the bone marrow in dogs. In contrast to oral exposures, NAA ethyl ester was the most toxic chemical species when administered dermally, inducing epidermal hyperplasia and hyperkeratosis, sebaceous gland hyperplasia, and dermal inflammation. The NAA sodium salt required a 10-fold higher dose to elicit similar dermal effects and no dermal effects were noted in the NAA acetamide exposure. Systemic toxicity was not a consequence of dermal exposure to any of the tested naphthalene acetates.
Developmental and offspring toxicity was linked to NAA sodium salt exposure but was not a common observation for the entire naphthalene acetate group. Developing rats exhibited decreased fetal weight and minor skeletal changes and were more susceptible to NAA sodium salt toxicity than the maternal rats. Skeletal defects and variants were observed in rabbit fetuses after exposure to NAA sodium salt in the developmental rabbit study; however these effects only occurred at doses that also compromised maternal health. Offspring toxicity from NAA sodium salt manifested as reduced litter survival and pup weight throughout lactation in two generations. These effects coincided with reduced body weight in both parental generations indicating the adults and their young were equally susceptible to NAA sodium salt.
Carcinogenicity studies of NAA acetamide in mice and NAA sodium salt in rats and mice are considered adequate for the evaluation of the oncogenicity of the NAA group. In these three studies the tested NAA
Specific information on the studies received and the nature of the adverse effects caused by NAA as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for NAA used for human risk assessment is shown in Table 1 of this unit.
1.
i.
ii.
iii.
iv.
2.
Tier 1 (Rice Model) Estimated Drinking Water Concentrations (EDWCs) in surface and groundwater for NAA were used in the dietary exposure assessment. The EDWCs were calculated using the Tier 1 surface water aquatic model First Index Reservoir Screening tool (FIRST) and the Tier I/II groundwater model Pesticide Root Zone Model Ground Water (PRZM GW), in Tier I mode. Accordingly, the EDWCs of NAA for chronic exposures for non-cancer assessments are estimated to be 65.1 parts per billion (ppb) for surface water and 646 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration value of 646 ppb was used to assess the contribution to drinking water.
3.
NAA is currently registered for root dip and sprout inhibition applications to ornamentals, which could result in residential exposures. There is a potential for short-term oral and inhalation exposures to residential handlers, resulting from loading and applying NAA. Though there is potential for dermal exposures for residential handlers, no dermal endpoint was selected due to the lack of systemic toxicity up to the limit dose (1,000 milligram/kilogram/day (mg/kg/day)). There are no residential uses for NAA that result in incidental dermal or oral exposure to children. The rooting compounds are applied by holding the plant and dipping the roots into solution. Very little exposure is expected from this use. Sprout inhibitors are applied by spray or paint brush/roller after pruning trees, or by spraying near the base of the tree after pruning root suckers. There is very little potential for post-application exposure to NAA for adults or children based on the residential use pattern; therefore, residential post-application exposure is not expected, nor is intermediate- or long-term exposure based on the intermittent nature of applications by homeowners.
Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
EPA has not found NAA to share a common mechanism of toxicity with any other substances, and NAA does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that NAA does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
1.
2.
3.
i. The toxicity database for NAA is complete, except for a subchronic inhalation toxicity study. EPA is
ii. There is no indication that NAA is a neurotoxic chemical based on the available studies in the database, and EPA determined that there is no need for acute and subchronic developmental neurotoxicity studies or additional UFs to account for neurotoxicity.
iii. The endpoints selected from the co-critical dog studies are protective of the effects observed in the rat developmental, rabbit developmental, and rat reproduction studies. Therefore, the potential for increased susceptibility in infants and children is low.
iv. There are no residual uncertainties identified in the exposure databases. The chronic dietary food exposure assessment was performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to NAA in drinking water. Based on the discussion in Unit III.C.3., regarding limited residential use patterns, exposure to residential handlers is very low and EPA does not anticipate post-application exposure to children or incidental dermal or oral exposures to toddlers resulting from use of NAA in residential settings. These assessments will not underestimate the exposure and risks posed by NAA.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
2.
3.
The EPA calculated an aggregated risk indices (ARI) to combine inhalation and oral exposures to adults. This resulted in an ARI greater than 1. An ARI value greater than 1 is not of concern to EPA, therefore, aggregate exposure to residential handlers is acceptable.
4.
5.
6.
Adequate enforcement methodology, a high performance liquid chromatography (HPLC) method using fluorescence detection (Method NAA-AM-001) and a similar method (Method NAA-AM-002), is available to enforce the tolerance expression for NAA in plant commodities.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
There is no established Codex MRL for NAA use on pomegranate.
Therefore, a tolerance is established for residues of NAA in or on pomegranate at 0.05 ppm.
This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of several polyamide ester polymers as listed in this final rule. Spring Trading Co. on behalf of Croda, Inc. submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of the listed chemicals on food or feed commodities.
This regulation is effective December 14, 2015. Objections and requests for hearings must be received on or before February 12, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0451, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0451 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before February 12, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0451, by one of the following methods.
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
That document included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. No comments were received by the Agency in response to the notice of filing.
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and use in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing an exemption from the requirement of a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . .” and specifies factors EPA is to consider in establishing an exemption.
EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.
Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d).
The polyamide ester polymers listed in this final rule conform to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.
1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.
2. The polymer does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.
3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).
4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.
5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.
6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.
7. The polymer does not contain certain perfluoroalkyl moieties consisting of a CF3- or longer chain length as specified in 40 CFR 723.250(d)(6).
Thus, polyamide ester polymers listed in this final rule (
For the purposes of assessing potential exposure under this exemption, EPA considered that these polymers could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The minimum number average MW (in amu) of each of these polymers is 1,400 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since these polymers conform to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.
Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”
EPA has not found these polymers to share a common mechanism of toxicity with any other substances, and these polymers does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that these polymers does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of these polymers, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.
Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of fatty acids, C
Not applicable.
An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program,
The Codex has not established a MRL for fatty acids, C
Accordingly, EPA finds that exempting residues of fatty acids, C
This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; inseason General category bluefin tuna quota transfer and retention limit adjustment.
NMFS is transferring 24.3 metric tons (mt) of Atlantic bluefin tuna (BFT) quota from the General category December 2016 subquota period to the January 2016 subquota period (from January 1 through March 31, 2016, or until the available subquota for this period is reached, whichever comes first). NMFS also is adjusting the Atlantic tunas General category BFT daily retention limit for the January 2016 subquota period to three large medium or giant BFT from the default retention limit of one. This action is based on consideration of the regulatory determination criteria regarding inseason adjustments and applies to Atlantic tunas General category (commercial) permitted vessels and Highly Migratory Species (HMS) Charter/Headboat category permitted vessels when fishing commercially for BFT.
The quota transfer is effective January 1, 2016. The General category retention limit adjustment is effective January 1, 2016, through March 31, 2016.
Sarah McLaughlin or Brad McHale, 978-281-9260.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971
Earlier this year, NMFS implemented a final rule that increased the U.S. BFT quota and subquotas per ICCAT Recommendation 14-05 (80 FR 52198, August 28, 2015). The base quota for the General category is 466.7 mt. See § 635.27(a). Each of the General category time periods (January, June through August, September, October through November, and December) is allocated a portion of the annual General category quota. Although it is called the “January” subquota, the regulations allow the General category fishery under this quota to continue until the subquota is reached or March 31, whichever comes first. Based on the General category base quota of 466.7 mt, the subquotas for each time period are as follows: 24.7 mt for January; 233.3 mt for June through August; 123.7 mt for September; 60.7 mt for October through November; and 24.3 mt for December. Any unused General category quota rolls forward within the fishing year, which coincides with the calendar year, from one time period to the next, and is available for use in subsequent time periods.
Under § 635.27(a)(9), NMFS has the authority to transfer quota among fishing categories or subcategories, after
NMFS has considered the determination criteria regarding inseason adjustments and their applicability to the General category fishery for the January 2016 subquota period, including, but not limited to, the following: Regarding the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock, biological samples collected from BFT landed by General category fishermen and provided by tuna dealers continue to provide NMFS with valuable parts and data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. Additional opportunity to land BFT would support the collection of a broad range of data for these studies and for stock monitoring purposes.
NMFS also considered the catches of the General category quota to date (including during the winter fishery in the last several years), and the likelihood of closure of that segment of the fishery if no adjustment is made; the projected ability of the vessels fishing under the particular category quota to harvest the additional amount of BFT before the end of the fishing year; and the estimated amounts by which quotas for other gear categories of the fishery might be exceeded. General category landings in the winter BFT fishery are highly variable and depend on availability. Commercial-sized BFT tuna are typically available in January and may continue to be through March.
Without a quota transfer from December 2016 to January 2016 for the General category at this time, the quota available for the January through March 2016 period would be 24.7 mt (5.3 percent of the General category quota), and participants would have to stop BFT fishing activities once that amount is met, while commercial-sized BFT may remain available in the areas where General category permitted vessels operate. Transferring the 24.3-mt quota available for December 2016 (5.2 percent of the General category quota) would result in 49 mt (10.5 percent of the General category quota) being available for the January subquota period. This quota transfer would provide additional opportunities to harvest the U.S. BFT quota without exceeding it, while preserving the opportunity for General category fishermen to participate in the winter BFT fishery.
Another principal consideration is the objective of providing opportunities to harvest the full annual U.S. BFT quota without exceeding it based on the goals of the 2006 Consolidated HMS FMP and Amendment 7, including to achieve optimum yield on a continuing basis and to optimize the ability of all permit categories to harvest their full BFT quota allocations. This transfer would be consistent with the quotas recently established and analyzed in the BFT quota final rule (80 FR 52198, August 28, 2015), and with objectives of the 2006 Consolidated HMS FMP and amendments, and is not expected to negatively impact stock health or to affect the stock in ways not already analyzed in those documents.
NMFS also anticipates that some underharvest of the 2015 adjusted U.S. BFT quota will be carried forward to 2016 to the Reserve category, in accordance with the regulations implementing Amendment 7. This, in addition to the fact that any unused General category quota will roll forward to the next subperiod within the calendar year, makes it possible that General category quota will remain available through the end of 2016 for December fishery participants, even with the quota transfer. NMFS also may choose to transfer unused quota from the Reserve or other categories, inseason, based on consideration of the determination criteria, as NMFS did for late 2015 (80 FR 68265, November 4, 2015; 80 FR 74997, December 1, 2015). Therefore, NMFS anticipates that General category participants in all areas and time periods will have opportunities to harvest the General category quota. Thus, this quota transfer would allow fishermen to take advantage of the availability of fish on the fishing grounds, consider the expected increases in available 2016 quota later in the year, and provide a reasonable opportunity to harvest the full U.S. BFT quota.
Based on the considerations above, NMFS is transferring 24.3 mt of General category quota allocated for the December 2016 period to the January 2016 period, resulting in a subquota of 49 mt for the January 2016 period and a subquota of 0 mt for the December period. NMFS will close the General category January fishery when the adjusted January period subquota of 49 mt has been reached, or it will close automatically on March 31, 2016, whichever comes first, and it will remain closed until the General category fishery reopens on June 1, 2016.
Unless changed, the General category daily retention limit starting on January 1 would be the default retention limit of one large medium or giant BFT (measuring 73 inches (185 cm) curved fork length (CFL) or greater) per vessel per day/trip (§ 635.23(a)(2)). This default retention limit would apply to General category permitted vessels and to HMS Charter/Headboat category permitted vessels when fishing commercially for BFT. For the 2015 fishing year, NMFS adjusted the daily retention limit from the default level of one large medium or giant BFT to three large medium or giant BFT for the January subquota period (79 FR 77943, December 29, 2014), which closed March 31, 2015; four large medium or giant BFT for the June through August period (80 FR 27863, May 15, 2015) as well as September 1 through November 27, 2015 (80 FR 51959, August 27, 2015); and three large medium or giant BFT for November 28 through December 31, 2015, or until the available General category quota is reached, whichever comes first (80 FR 74997, December 1, 2015).
Under § 635.23(a)(4), NMFS may increase or decrease the daily retention limit of large medium and giant BFT over a range of zero to a maximum of five per vessel based on consideration of the relevant criteria provided under § 635.27(a)(8), and listed above. NMFS
As described above with regard to the quota transfer, additional opportunity to land BFT would support the collection of a broad range of data for the biological studies and for stock monitoring purposes. Regarding the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock, additional opportunity to land BFT would support the collection of a broad range of data for the biological studies and for stock monitoring purposes. Regarding the effects of the adjustment on BFT rebuilding and overfishing and the effects of the adjustment on accomplishing the objectives of the fishery management plan, as this action would be taken consistent with the previously implemented and analyzed quotas, and it is not expected to negatively impact stock health or otherwise affect the stock in ways not previously analyzed. It is also supported by the Environmental Analysis for the 2011 final rule regarding General and Harpoon category management measures, which increased the General category maximum daily retention limit from three to five fish (76 FR 74003, November 30, 2011).
Regarding the catches of the particular category quota to date and the likelihood of closure of that segment of the fishery if no adjustment is made, in 2012, 2013, and 2014, the available January subquota (23.1 mt) was reached on January 22, February 15, and March 21, respectively, under a limit of two large medium or giant BFT, and in each of these years the General category did not reach its available quota by the end of the year. For 2015, the adjusted January subquota of 45.7 (reflecting the first of the inseason actions described above as well as implementation of the final BFT quota rule) was not met under a daily retention limit of three large medium or giant BFT.
As noted above, commercial-sized BFT are typically available in January and may continue to be through March. Considering this information and the transfer of the December 2016 subquota to the quota for the January 2016 time period (for an adjusted total of 49 mt), the default one-fish limit likely would be overly restrictive. Increasing the daily retention limit from the default may mitigate rolling an excessive amount of unused quota from one time-period subquota to the next and thus help maintain an equitable distribution of fishing opportunities. Although NMFS has the authority to set the daily retention limit to up to five fish, the rate of harvest of the January subquota could be accelerated under a high limit (and higher fish availability), and result in a relatively short fishing season. A short fishing season may preclude or reduce fishing opportunities for some individuals or geographic areas because of the migratory nature and seasonal distribution of BFT.
Based on these considerations, NMFS has determined that a three-fish General category retention limit is warranted for the January 2016 subquota. It would provide a reasonable opportunity to harvest the U.S. quota of BFT without exceeding it, while maintaining an equitable distribution of fishing opportunities, help optimize the ability of the General category to harvest its full quota, allow collection of a broad range of data for stock monitoring purposes, and be consistent with the objectives of the 2006 Consolidated HMS FMP and amendments. Therefore, NMFS increases the General category retention limit from the default limit (one) to three large medium or giant BFT per vessel per day/trip, effective January 1, 2016, through March 31, 2016, or until the 49-mt January subquota is harvested, whichever comes first.
Regardless of the duration of a fishing trip, the daily retention limit applies upon landing. For example, during the January 2016 subquota period, whether a vessel fishing under the General category limit takes a two-day trip or makes two trips in one day, the day/trip limit of three fish applies and may not be exceeded upon landing. This General category retention limit is effective in all areas, except for the Gulf of Mexico, where NMFS prohibits targeted fishing for BFT, and applies to those vessels permitted in the General category, as well as to those HMS Charter/Headboat permitted vessels fishing commercially for BFT.
NMFS will continue to monitor the BFT fishery closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. General, HMS Charter/Headboat, Harpoon, and Angling category vessel owners are required to report the catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or end of each trip, by accessing
The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:
The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Affording prior notice and opportunity for public comment to implement the quota transfer and daily retention limit for the January 2016 subquota time period is impracticable. NMFS could not have proposed these actions earlier, as it needed to consider and respond to updated data and information from the 2015 General category fishery, including during late 2015, in deciding to transfer the December 2016 quota to the January 2016 subquota period and selecting the appropriate retention limit for the January 2016 subquota period. If NMFS was to offer a public comment period now, after having appropriately considered that data, it would preclude fishermen from harvesting BFT that are legally available consistent with all of the regulatory criteria, and/or could result in selection of a retention limit inappropriately high for the amount of quota available for the period.
Delays in increasing the daily retention limit would adversely affect those General and HMS Charter/Headboat category vessels that would otherwise have an opportunity to harvest more than the default retention limit of one BFT per day/trip and may exacerbate the problem of low catch rates and quota rollovers. Limited opportunities to harvest the respective quotas may have negative social and economic impacts for U.S. fishermen that depend upon catching the available quota within the designated time periods. Adjustment of the retention limit needs to be effective January 1, 2016, or as soon as possible thereafter, to minimize any unnecessary disruption in fishing patterns, to allow the
This action is being taken under §§ 635.23(a)(4) and 635.27(a)(9), and is exempt from review under Executive Order 12866.
16 U.S.C. 971
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This final rule clarifies the regulatory requirements for vessels using midwater trawl gear in the Pacific Coast Groundfish Fishery Shorebased Individual Fishing Quota Program. This action is needed to eliminate inconsistencies and reduce confusion in the current regulations. For vessels targeting Pacific whiting, the action clarifies that the retention of prohibited and protected species is allowed until landing. The disposition of prohibited and protected species is specified consistent with the Pacific Coast Groundfish Fishery Management Plan (groundfish FMP), the Pacific Coast Salmon Fishery Management Plan (salmon FMP), and other applicable law.
Effective January 13, 2016.
NMFS prepared a Final Regulatory Flexibility Analysis (FRFA), which is summarized in the Classification section of this final rule. NMFS also prepared an Initial Regulatory Flexibility Analysis (IRFA) for the proposed rule (Published in the
Becky Renko, 206-526-6110; (fax) 206-526-6736;
This action amends the Pacific Coast groundfish fishery regulations to eliminate redundancies and inconsistencies relating to the use of midwater trawl gear in the Shorebased Individual Fishing Quota Program (Shorebased IFQ Program). The action is consistent with policy decisions that the Pacific Fishery Management Council (Council) made during the implementation of a trawl catch share program under Amendment 20 to the groundfish FMP.
Midwater trawl gear has primarily been used to target Pacific whiting, but can also be used to target other groundfish species. Since implementation of the Shorebased IFQ Program in 2011, midwater trawl gear has been increasingly used to target non-whiting groundfish north of 40°10′ north latitude. South of 40°10′ north latitude midwater trawling has been allowed year round in waters deeper than 150 fathoms (fm) for all target species.
In anticipation of the trawl catch share program, groundfish regulations were restructured on October 1, 2010 (75 FR 60868). When the Shorebased IFQ Program was implemented, the midwater Pacific whiting shorebased fishery and the bottom trawl fishery were merged to create a single Shorebased IFQ fishery. Many of the pre-IFQ fishery management measures relating to time and area management were retained in the regulations for use in the Shorebased IFQ Program. However, integrating pre-IFQ regulations with new regulations for the Shorebased IFQ Program resulted in inconsistencies and numerous unclear and confusing management restrictions relating to the use of midwater trawl gear.
This final rule revises groundfish regulations to clarify that midwater trawl gear is required for vessels targeting Pacific whiting during the primary season north of 40°10′ north latitude, and that midwater trawl gear is allowed for vessels targeting non-whiting species during the Pacific whiting Shorebased IFQ Program primary season. Restrictions that allow midwater trawl to only be used by vessels participating in the Pacific whiting Shorebased IFQ fishery are removed. The regulations are revised to clarify that vessels using midwater trawl gear, regardless of the target species, are exempt from the trawl Rockfish Conservation Area (RCA) restrictions in the area north of 40°10′ north latitude during the dates of the Pacific whiting primary season. These changes allow vessels using midwater trawl gear north of 40°10′ north latitude to declare either “limited entry midwater trawl, non-whiting shorebased IFQ” or “limited entry midwater trawl, Pacific whiting shorebased IFQ” consistent with the target strategy. This action is expected to add clarity to the regulations.
This action also revises the definition of “Pacific whiting IFQ trip” consistent with Appendix E of the groundfish FMP, which details the Final Preferred Alternative adopted under Amendment 20, and which is consistent with the Environmental Impact Statement analysis conducted in support of Amendment 20. Appendix E defines non-whiting landings as those with less than 50 percent Pacific whiting by weight.
Groundfish management includes restrictions on the retention of certain non-groundfish species, including prohibited and protected species. Prohibited species include all salmonids, Pacific halibut, and Dungeness crab off Oregon and Washington. Protected species include marine mammals, seabirds, sea turtles, and species such as green sturgeon and eulachon, which are listed under the Endangered Species Act (ESA). Generally, prohibited species must be returned to the sea as soon as practicable with a minimum of injury. An exception to the retention restrictions is made for tagged fish, or when retention is authorized by other applicable law. Pacific halibut may be retained until landing by vessels in the Pacific whiting fishery that do not sort the catch at sea only pursuant to NMFS donation regulations. Amendment 10 to the groundfish FMP and Amendment 12 to the salmon FMP were revised to allow salmon bycatch to be retained until landing in cases where the Council determines it is beneficial to the
With implementation of the Shorebased IFQ Program, a maximized retention provision was added to the groundfish regulations for vessels in the Pacific whiting IFQ fishery. However, the provision did not address the retention of prohibited species other than Pacific halibut, nor did it establish handling and disposition requirements for prohibited species. For consistency with the salmon FMP and Pacific halibut regulations, provisions for the retention and disposition of prohibited species are added by this final rule. In addition, general definitions at 50 CFR 660.11 are revised to add a definition for protected species, and handling and disposition requirements are established in the regulations.
Minor changes, as detailed in the preamble of the proposed rule, are made throughout the regulations. These minor changes are being made for consistency between the different subparts of groundfish regulations, for clarity, and to remove redundant regulatory text.
NMFS received one comment letter on the proposed rule (80 FR 52015, August 27, 2015) from a business representing fishermen engaged in the whiting and non-whiting midwater trawl fisheries. The comment is addressed here:
There are no changes to the regulatory text from the proposed rule.
Pursuant to section 304(b)(1)(A) and 305(d) of the MSA, NMFS has determined that this final rule is consistent with the Groundfish FMP, the Magnuson-Stevens Act, and other applicable law.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
Pursuant to section 604 of the Regulatory Flexibility Act (RFA), NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA) in support of this action. The FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' response to those comments, relevant analysis contained in the action and its EA, and a summary of the analyses in this rule. A copy of the analyses and the EA are available from NMFS (see
The rule modifies midwater trawl restrictions for vessels participating in the Shorebased IFQ Program under the authority of the groundfish FMP and the Magnuson-Stevens Act. The rule would amend the regulations to remove redundancies and inconsistencies relative to the use of midwater trawl gear, and would add provisions to fully implement “maximized retention” allowances for vessels targeting Pacific whiting. Maximized retention encourages full retention of all catch while recognizing that minor discard events may occur. Only one comment was received on the proposed rule (See Response to Comments section above.) That comment did not raise any issues or concerns related to the IRFA or economic issues more generally. No changes were made to this final rule as a result of the comment.
Two alternatives, each with sub-options, were considered.
• North of 40°10′ north latitude midwater trawl gear may be used by vessels with a “Limited entry midwater trawl, Pacific whiting shorebased IFQ” declaration after the start of the primary season. Vessels may use midwater trawl gear to target Pacific whiting and non-whiting if the vessel also fishes in the Pacific whiting fishery.
• There is no requirement to target or land Pacific whiting on a Pacific whiting IFQ trip.
• Vessels with a “Limited entry midwater trawl, Pacific whiting shorebased IFQ” declaration may fish within the RCAs after the start of the primary season.
• Other than Pacific Halibut, prohibited species and protected species retention until landing is prohibited.
• Vessels North of 40°10′ north latitude may carry multiple types of midwater gear and both whiting and non-whiting target strategies are allowed on the same trip, however the vessel must have a valid “Limited entry midwater trawl, Pacific whiting shorebased IFQ” declaration.
• Midwater trawl gear will be allowed for all target species with a valid declaration for either “limited entry midwater trawl, non-whiting shorebased IFQ” or “limited entry midwater trawl, Pacific whiting shorebased IFQ.” Non-whiting vessels would not be obligated to also target Pacific whiting.
• A Pacific whiting IFQ trip must be 50 percent or more whiting by weight at landing.
• Midwater trawl gear will be allowed within the trawl RCAs and EFH conservation areas for all target species.
• For vessels targeting Pacific whiting on “maximized retention” trips, prohibited and protected species must be retained until landing.
• The disposition of salmon would be specified such that it is consistent with salmon FMP.
• The disposition of Pacific halibut and Dungeness crab would be specified
• The disposition of protected species would be consistent with the current biological opinions.
• North of 40°10′ north latitude, vessels will be allowed to carry multiple types of midwater gear, but:
Under No Action, it is unclear whether vessels using midwater trawl north of 40°10′ north latitude must submit a declaration for “limited entry midwater trawl, Pacific whiting shorebased IFQ” even if they intend to target non-whiting species. Alternative 2 results in a low positive impact over No Action as it removes the prohibition that restricts midwater trawl to the Pacific whiting fishery north of 40°10′ north latitude and allows for the use of either midwater trawl declaration. Alternative 2 would improve tracking of activity relative to time/area restrictions and the specific target strategy. Aligning the declaration with the activity could allow for a more surgical management response that can be clearly understood by harvesters.
Under No Action, Pacific whiting trips would not be defined. Alternative 2 defines Pacific whiting trips as trips with landings that are 50 percent or more Pacific whiting by weight. Alternative 2 is not expected to have a measureable effect on the vast majority of midwater trawl trips targeting Pacific whiting. Only a small number of vessels may have reduced flexibility under Alternative 2 sub-option A (one target strategy per trip) because a vessel operator cannot change the target fishing strategy after they leave port. However, sub-option A is most similar to how harvesters currently operate. Either sub-option provides clarity and eliminates inconsistencies, making the regulations less complicated for harvesters and easier to enforce. Revising the groundfish regulations for clarity under Alternative 2 is expected to provide more equitable opportunity for non-whiting vessels north of 40°10′ north latitude as it is clear they do not need to also fish for Pacific whiting.
Time/Area restrictions under No Action include Rockfish Conservation Areas (RCAs), Klamath River conservation zone, Columbia River conservation zone, Ocean Salmon Conservation Zones (OSCZs), Bycatch Reduction Areas (BRAs), the Eureka area 100 fm restriction, prohibition on night fishing south of 42°00′ north latitude, and the Pacific whiting primary seasons. These restrictions were initially implemented to reduce incidental catch of Chinook salmon in the Pacific whiting fisheries. The Klamath River conservation zone, Columbia River conservation zone, OSCZs, and the prohibition on night fishing are specific to the targeting of Pacific whiting and would remain linked to the targeting of whiting under both No Action and Alternative 2. The impacts of No Action on the closed areas are neutral as no changes would be made to reduce the confusion by fishermen or enforcement about prohibited or allowed activities. Because widow rockfish were historically targeted at night with low bycatch, Alternative 2 revisions would clearly state that the prohibition on night fishing does not apply to non-whiting targeting. BRAs have evolved since their initial implementation in 2007 when they applied specifically to the targeting of whiting. Since 2013, the BRAs have been considered a tool for use in the Pacific whiting sectors (all midwater trawl). Alternative 2 revisions would clearly state that the BRAs and RCA exemptions apply to all midwater trawl. Providing clarification on how time/area restrictions relate to specific target fishing activity under Alternative 2 is expected to reduce regulatory complexity and eliminate contradictory regulations. Changes under Alternative 2 are expected to be beneficial to the harvesters, managers, and enforcement.
Maximized retention is allowed under No Action. However, supporting regulations would not be added to reduce confusion regarding the landing of maximized retention catch for non-whiting target strategies. Provisions would not be added to allow the retention of prohibited species under No Action. The socio-economic impacts of managing under No Action are neutral, providing that restrictions on the retention of prohibited species continue to be unenforced. Alternative 2 would revise the regulations to clearly state that maximized retention would only be allowed for trips targeting Pacific whiting, consistent with the provisions of Amendment 20. Because of relatively low bycatch by vessels targeting Pacific whiting, maximized retention allows sorting to be delayed until landing. Because whiting flesh deteriorates rapidly once the fish are caught, whiting must be minimally handled and immediately chilled to maintain the flesh quality. Allowing Pacific whiting shoreside vessels to retain unsorted catch benefits harvesters by enabling whiting quality to be maintained. Under Alternative 2, provisions would be added to allow Pacific whiting vessels to retain otherwise prohibited species until landing. Non-whiting vessels would have to continue to sort prohibited and protected species at sea. Some non-whiting landings under maximized retention have had a greater variety in bycatch than is typically seen in Pacific whiting landings and have been landed at first receivers with only one catch monitor. Long offloads associated with sorting and weighing non-whiting maximized retention catch has resulted in offload time exceeding the catch monitor's allowed work hours in a 24 hour period. Alternative 2 would also provide clarification on the disposition of protected species for maximized retention landings. Revisions to the maximized retention requirements under Alternative 2 are expected to reduce regulatory complexity and eliminate contradictory regulations, benefiting harvesters.
Under No Action, Pacific whiting trips would continue to be undefined and no protocols for handling or disposing of prohibited or protected species would be defined. The impacts of No Action are neutral, as first receivers would use current methods to identify maximized retention deliveries and determine how to handle and dispose of prohibited and protected species. Defining Pacific whiting trips under Alternative 2 should make it easier for first receivers/processors to identify which trips are classified as “maximized retention” such that it would be more clear which groundfish regulations apply. Alternative 2 specifies handling and disposition of prohibited and protected species. Clear protocols for the disposition of prohibited catch should reduce complexity and confusion for first receivers/processors. Currently, provisions that affect the disposition of prohibited or protected species exist in various federal regulations, non-groundfish FMPs, and ESA biological opinions. Clarifying these provisions in the groundfish regulations will reduce complexity in the requirements for disposition and handling of maximized retention catch and result in a low positive benefit to first receivers/processors. First receivers are currently taking salmon and grinding and processing the fish into fish meal and/or providing edible fish to food pantries, soup kitchens, or other non-profit
This action will clarify the regulatory requirements for vessels using midwater trawl gear in the Pacific Coast Groundfish Fishery Shorebased Individual Fishery Quota Program. This action is needed to eliminate inconsistencies and confusion in the current regulations. For vessels targeting Pacific whiting, the action would clarify that the retention of prohibited and protected species is allowed until landing. The disposition of prohibited and protected species would be specified consistent with the Pacific Coast Groundfish Fishery Management Plan, the Pacific Coast Salmon Fishery Management Plan, and other applicable law.
The NMFS Guidelines for Economic Analysis of Fishery Management Actions suggest two criteria to consider in determining the significance of regulatory impacts, namely, disproportionality and profitability. As this final rule is intended to clarify the regulations, available information does not indicate that there will be a significant impact in terms of disproportionality and profitability when comparing small versus large businesses. Copies of the Small Entity Compliance Guide prepared for this final rule are available on the West Coast Region's Web site at
This final rule contains a new collection of information requirement subject to review under the Paperwork Reduction Act (PRA) which was approved by OMB under collection 0648-0619. The public reporting burden for first receivers to retain records showing the disposition of prohibited and protected species is estimated to average 1 minute per response.
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
Pursuant to Executive Order 13175, this action is consistent with policy decisions that the Council made during the implementation of Amendment 20 to the Pacific Coast Groundfish Fishery Management Plan, which was developed after meaningful consultation and collaboration with tribal officials from the area covered by the groundfish FMP. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. The proposed regulations do not have a direct effect on the tribes. This rule eliminates redundancies and inconsistencies with state law relative to the use of midwater trawl gear and does not have a direct effect on tribes.
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
The additions read as follows:
(a) * * *
(1) Retain any prohibited or protected species caught by means of fishing gear authorized under this subpart, unless otherwise authorized. Except as otherwise authorized, prohibited and protected species must be returned to the sea as soon as practicable with a minimum of injury when caught and brought on board.
(10) Transfer fish to another vessel at sea unless the vessel transferring fish is participating in the MS Coop or C/P Coop Programs.
(11) Fail to remove all fish from the vessel at landing (defined in § 660.11) and prior to beginning a new fishing trip, except for processing vessels participating in the MS Coop or C/P Coop Programs.
(c) * * *
(1) * * *
(i) * * *
(A)
(B)
(C)
The revisions read as follows:
(c) * * *
(3) * * *
(i)
(d)
(1) Automatic actions are used to:
(i) Close the MS or C/P sector when that sector's Pacific whiting allocation is reached, or is projected to be reached. The MS sector non-coop fishery may be closed by automatic action when the Pacific whiting or non-whiting allocation to the non-coop fishery has been reached or is projected to be reached.
(ii) Close one or both MS and C/P sectors when a non-whiting groundfish species with allocations is reached or projected to be reached.
(iii) Reapportion unused allocations of non-whiting groundfish species between the MS and C/P sectors.
(iv) Reapportion the unused portion of the tribal allocation of Pacific whiting to the MS sector, C/P sector, and Shorebased IFQ sector.
(v) Implement the Ocean Salmon Conservation Zone, described at § 660.131, when NMFS projects the Pacific whiting fishery and the tribal whiting fishery combined will take in excess of 11,000 Chinook within a calendar year.
(vi) Implement BRAs, described at § 660.131, when NMFS projects a sector-specific allocation will be reached before the sector's whiting allocation.
(2) Automatic actions are effective when actual notice is sent by NMFS identifying the effective time and date. Actual notice to fishers and processors will be by email, Internet
This subpart applies to the Pacific coast groundfish limited entry trawl fishery. * * *
The revisions and additions read as follows:
(a) * * *
(2)
(ii) Fail to sort, retain, discard, or dispose of prohibited and protected species from maximized retention landings consistent with the requirements specified at § 660.140(g)(3).
(iii) Retain for personal use or allow to reach commercial markets any part of any prohibited or protected species.
(b) * * *
(1) * * *
(viii) Fish on a Pacific whiting IFQ trip with a gear other than midwater groundfish trawl gear.
(ix) Fish on a Pacific whiting IFQ trip without a valid declaration for limited entry midwater trawl, Pacific whiting shorebased IFQ.
(x) Use midwater groundfish trawl gear Pacific whiting IFQ fishery primary season dates as specified at § 660.131(b).
(2) * * *
(ii) Fail to sort or dispose of catch received from an IFQ trip in accordance with the requirements of §§ 660.130(d) and 660.140(g)(3).
The revisions and additions read as follows:
(a)
(c) * * *
(3)
(ii) South of 40°10′ N. lat., midwater groundfish trawl gear is prohibited shoreward of the RCA boundaries and permitted seaward of the RCA boundaries.
(4) * * *
(i) * * *
(A) A vessel may not have both groundfish trawl gear and non-groundfish trawl gear onboard simultaneously. A vessel may not have both bottom groundfish trawl gear and midwater groundfish trawl gear onboard simultaneously. A vessel may have more than one type of limited entry bottom trawl gear on board, either simultaneously or successively, during a cumulative limit period. A vessel may have more than one type of midwater groundfish trawl gear on board, either simultaneously or successively, during a cumulative limit period.
(B) If a vessel fishes exclusively with large or small footrope trawl gear during an entire cumulative limit period, the vessel is subject to the small or large footrope trawl gear cumulative limits and that vessel must fish seaward of the RCA boundaries during that limit period.
(C) If a vessel fishes exclusively with selective flatfish trawl gear during an entire cumulative limit period, then the vessel is subject to the selective flatfish trawl gear-cumulative limits during that limit period, regardless of whether the vessel is fishing shoreward or seaward of the RCA boundaries.
(D) If more than one type of bottom groundfish trawl gear (selective flatfish, large footrope, or small footrope) is on board, either simultaneously or successively, at any time during a cumulative limit period, then the most restrictive cumulative limit associated with the bottom groundfish trawl gear on board during that cumulative limit period applies for the entire cumulative limit period, regardless of whether the vessel is fishing shoreward or seaward of the RCA.
(E) If a vessel fishes both north and south of 40°10′ N. lat. with any type of small footrope gear onboard the vessel at any time during the cumulative limit period, the most restrictive trip limit associated with the gear on board applies for that trip and will count toward the cumulative trip limit for that gear (See crossover provisions at § 660.120.)
(d) * * *
(2) * * *
(i)
(3)
(ii) If sorting occurs on a catcher vessel in the MS Coop Program, the catch must not be discarded from the vessel and the vessel must not mix catch from hauls until the observer has sampled the catch.
(e)
(4) * * *
(i) Operating a vessel with groundfish trawl gear onboard within a trawl RCA is prohibited, except for the purpose of continuous transit, or under the following conditions when the vessel has a valid declaration for the allowed fishing:
(A) Midwater groundfish trawl gear may be used within the RCAs north of 40°10′ N. lat. by vessels targeting Pacific whiting or non-whiting during the applicable Pacific whiting primary season.
(B) Vessels fishing with demersal seine gear between 38° N. lat. and 36° N. lat. shoreward of a boundary line approximating the 100 fm (183 m) depth contour as defined at § 660.73, subpart C, may have groundfish trawl gear onboard.
(ii) Trawl vessels may transit through an applicable GCA, with or without groundfish on board, provided all groundfish trawl gear is stowed either: Below deck; or if the gear cannot readily be moved, in a secured and covered manner, detached from all towing lines, so that it is rendered unusable for fishing; or remaining on deck uncovered if the trawl doors are hung from their stanchions and the net is disconnected from the doors. These restrictions do not apply to vessels allowed to fish within the trawl RCA under paragraph (e)(4)(i) of this section.
(6)
(7)
(a)
(b)
(ii) For the C/P sector, the primary season is the period(s) when catching and at-sea processing are allowed (after the season closes, at-sea processing of any fish already on board the processing vessel is allowed to continue).
(iii) For vessels delivering to motherships, the primary season is the period(s) when catching and at-sea processing is allowed for the MS sector (after the season closes, at-sea processing of any fish already on board the processing vessel is allowed to continue).
(2)
(i)
(ii)
(iii)
(3)
(ii) If a vessel on a Pacific whiting IFQ trip harvests a groundfish species other than whiting for which there is a midwater trip limit, then that vessel may also harvest up to another footrope-specific limit for that species during any
(c)
(4)
(d)
(h) * * *
(2) The reapportionment of surplus whiting will be made by actual notice under the automatic action authority provided at § 660.60(d)(1).
(a)
(b) * * *
(2) * * *
(i) Ensure that all catch removed from a vessel making an IFQ delivery is weighed on a scale or scales meeting the requirements described in § 660.15(c).
(ii) Ensure that all catch is landed, sorted, and weighed in accordance with a valid catch monitoring plan as described in § 660.140(f)(3)(iii).
(iii) Ensure that all catch is sorted, prior to first weighing, as specified at § 660.130(d) and consistent with § 660.140(j)(2)(viii).
(g)
(2)
(3)
(A) Any prohibited species landed at first receivers must not be transferred, processed, or mixed with another landing until the catch monitor has: recorded the number and weight of salmon by species; inspected all prohibited species for tags or marks; and, collected biological data, specimens, and genetic samples.
(B) No part of any prohibited species may be retained for personal use by a vessel owner or crew member, or by a first receiver or processing crew member. No part of any prohibited species may be allowed to reach commercial markets.
(C) Prohibited species suitable for human consumption at landing must be handled and stored to preserve the quality. Priority in disposition must be given to the donation to surplus food collection and distribution system operated and established to assist in bringing donated food to nonprofit charitable organizations and individuals for the purpose of reducing hunger and meeting nutritional needs.
(D) The first receiver must report all prohibited species landings on the electronic fish ticket and is responsible for maintaining records verifying the disposition of prohibited species. Records on catch disposition may include, but are not limited to: Receipts from charitable organizations that include the organization's name and amount of catch donated; cargo manifests setting forth the origin, weight, and destination of all prohibited species; or disposal receipts identifying the recipient organization and amount disposed. Any such records must be maintained for a period not less than three years after the date of disposal and such records must be provided to OLE upon request.
(ii)
(A)
(B)
(j) * * *
(2) * * *
(viii)
(A) The unsorted catch is weighed on a bulk weighing scale in compliance with equipment requirements at § 660.15(c);
(B) All catch (groundfish and non-groundfish species) in the landing other than the single predominant species is reweighed on a scale in compliance with equipment requirements at § 660.15(c) and the reweighed catch is deducted from the total weight of the landing;
(C) The catch is sorted to the species groups specified at § 660.130(d) prior to processing or transport away from the point of landing; and
(D) Prohibited species are sorted by species, counted, and weighed.
(a) In addition to the general prohibitions specified in § 600.725 of this chapter, it is unlawful for any person to do any of the following, except as otherwise authorized under this part:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; reallocation.
NMFS is reallocating the projected unused amount of Pacific cod from catcher vessels using trawl gear to vessels using pot gear in the Central Regulatory Area of the Gulf of Alaska management area (GOA). This action is necessary to allow the 2015 total allowable catch of Pacific cod in the Central Regulatory Area of the GOA to be harvested.
Effective December 10, 2015, through 2400 hours, Alaska local time (A.l.t.), December 31, 2015.
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the Gulf of Alaska exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.
The 2015 Pacific cod total allowable catch (TAC) specified for catcher vessels using trawl gear in the Central Regulatory Area of the GOA is 18,933 metric tons (mt), as established by the final 2015 and 2016 harvest specifications for groundfish in the GOA (80 FR 10250, February 25, 2015). The Administrator, Alaska Region (Regional Administrator) has determined that catcher vessels using trawl gear in the Central Regulatory Area of the GOA will not be able to harvest 2,000 mt of the 2015 Pacific cod TAC allocated to those vessels under § 679.20(a)(12)(i)(B).
In accordance with § 679.20(a)(12)(ii)(B), the Regional Administrator has also determined that vessels using pot gear in the Central Regulatory Area of the GOA currently have the capacity to harvest this excess allocation and reallocates 2,000 mt to vessels using pot gear.
The harvest specifications for Pacific cod in the Central Regulatory Area of the GOA included in the final 2015 harvest specifications for groundfish in the GOA (80 FR 10250, February 25, 2014) are revised as follows: 16,933 mt for catcher vessels using trawl gear and 14,660 mt for vessels using pot gear.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of Pacific cod specified from catcher vessels using trawl gear in the Central Regulatory Area of the GOA to vessels using pot
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule would implement a recommendation from the Administrative Committee for Pistachios (Committee) to increase the assessment rate established for the 2015-16 and subsequent production years from $0.0005 to $0.0035 per pound of assessed weight pistachios handled under the marketing order for pistachios grown in California, Arizona, and New Mexico. The Committee locally administers the order and is comprised of producers and handlers of pistachios operating within the area of production. Assessments upon pistachio handlers are used by the Committee to fund reasonable and necessary expenses of the program. The production year begins on September 1 and ends August 31. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated.
Comments must be received by December 29, 2015.
Interested persons are invited to submit written comments concerning this proposed rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet:
Peter Sommers, Marketing Specialist, or Martin Engeler, Regional Director, California Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email:
Small businesses may request information on complying with this regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
This proposed rule is issued under Marketing Agreement and Order No. 983, as amended (7 CFR part 983), regulating the handling of pistachios grown in California, Arizona, and New Mexico, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 13175.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California, Arizona, and New Mexico pistachio handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable pistachios beginning on September 1, 2015, and continue until amended, suspended, or terminated.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This proposed rule would increase the assessment rate for the 2015-16 and subsequent production years from $0.0005 to $0.0035 per pound of assessed weight pistachios.
The California, Arizona, and New Mexico pistachio marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of California, Arizona, and New Mexico pistachios. They are familiar with the Committee's needs and with the costs of goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.
For the 2011-12 and subsequent production years, the Committee recommended, and the USDA approved, an assessment rate that would continue in effect from production year to production year unless modified, suspended, or terminated by USDA based upon recommendation and information submitted by the Committee or other information available to USDA.
The Committee met on July 9, 2015 and October 20, 2015 and unanimously recommended 2015-16 production year expenditures of $1,056,402 and an assessment rate of $0.0035 per pound of assessed weight pistachios handled to
The major expenditures recommended by the Committee for the 2015-16 production year include $560,000 for SIT/NOW research, $92,402 for administrative expenses, $314,000 for salary and related employee expenses, $10,000 for compliance expenses, and $80,000 for a contingency fund. Budgeted expenses in 2014-15 were $360,000 for Technical Assistance Specialty Crop (TASC) Program research, $125,000 for other research, $117,400 for administrative expenses, $314,000 for salary and related employee expenses, $10,000 for compliance expenses, and $75,000 for a contingency fund. Actual expenses in 2014-15 were significantly lower, at $547,199, as the TASC research was not funded.
The assessment rate recommended by the Committee was derived by considering anticipated expenses and production levels of California, Arizona, and New Mexico pistachios, and other pertinent factors. As mentioned earlier, pistachio production levels are estimated at 265 million pounds, which should generate $927,500 in assessment income. Anticipated assessment income derived from handler assessments, along with other income and financial reserves would provide sufficient revenue for the Committee to meet its budgeted expenses while maintaining its financial reserve within the limit authorized under the order. The significant increase in the assessment rate is due to a significant increase in budgeted expenses in 2015 over actual expenses in 2014, and also a significantly smaller crop estimate in 2015. The financial reserve is estimated to be $239,994 at the end of the 2015-16 production year.
The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA based upon a recommendation and information submitted by the Committee or other available information.
Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each production year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public, and interested persons may express their views at these meetings. USDA would evaluate the Committee's recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2015-16 budget and those for subsequent production years would be reviewed and, as appropriate, approved by USDA.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 1,152 producers of pistachios in the production area and approximately 19 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000 (13 CFR 121.201).
Based on Committee data, it is estimated that about 47 percent of the handlers annually ship less than $7,000,000 worth of pistachios, and it is also estimated that 68 percent of the producers have annual receipts less than $750,000. Thus, the majority of handlers in the production area may be classified as large entities, and the majority of producers may be classified as small entities.
This proposal would increase the assessment rate collected from handlers for the 2015-16 and subsequent production years from $0.0005 to $0.0035 per pound of assessed weight pistachios. The Committee unanimously recommended 2015-16 expenditures of $1,056,402 and an assessment rate of $0.0035 per pound of assessed weight pistachios. The proposed assessment rate of $0.0035 is $0.0030 higher than the 2014-15 rate. The quantity of assessable pistachios for the 2015-16 production year is estimated at 265 million pounds. Thus, the $0.0035 rate should provide $927,500 in assessment income. Anticipated assessment income derived from handler assessments, along with other income and financial reserves would provide sufficient revenue for the Committee to meet its budgeted expenses while maintaining its financial reserve authorized under the order which is approximately two production years' budgeted expenses.
The major expenditures recommended by the Committee for the 2015-16 production year include $560,000 for SIT/NOW research, $92,401 for administrative expenses, $314,000 for salary and related employee expenses, $10,000 for compliance expenses, and $80,000 for a contingency fund. Budgeted expenses in 2014-15 were $360,000 for TASC Program research, $125,000 for other research, $117,400 for administrative expenses, $314,000 for salary and related employee expenses, $10,000 for compliance expenses, and $75,000 for a contingency fund. The reasons for the proposed increase include a significant increase in budgeted expenses in 2015 over actual expenses in 2014, a significantly smaller crop estimate in 2015, and allocation of funds for Sterile Insect Technology/Navel Orange Worm (SIT/NOW) research.
Prior to arriving at this budget and assessment rate, the Committee considered alternative expenditure levels but ultimately determined that 2015-16 expenditures of $1,056,402 were appropriate and that the current assessment rate would generate
According to data from the National Agricultural Statistics Service, the season average producer price was $3.48 per pound of assessed weight pistachios in 2013 and $3.10 per pound in 2014. A review of historical information and preliminary information pertaining to the upcoming production year indicates that the producer price for the 2015-16 production year could range between $3.48 and $3.10 per pound of assessed weight pistachios. Therefore, the estimated assessment revenue for the 2015-16 production year as a percentage of total producer revenue could range between 0.10 and 0.11 percent.
This action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. These costs would be offset by the benefits derived from the operation of the marketing order. In addition, the Committee's meeting was widely publicized throughout the California, Arizona, and New Mexico pistachio industry, and all interested persons were invited to attend and participate in Committee deliberations on all issues. Like all Committee meetings, the July 9, 2015, and October 20, 2015, meetings were public and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0215. No changes in those requirements are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.
This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large California, Arizona, and New Mexico pistachio handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this action.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
A 15-day comment period is provided to allow interested persons to respond to this proposed rule. Fifteen days is deemed appropriate because: (1) The 2015-16 production year began on September 1, 2015, and the marketing order requires that the rate of assessment for each production year apply to all assessable pistachios handled during such production year; (2) the Committee needs to have sufficient funds to pay its expenses, which are incurred on a continuous basis; and (3) handlers are aware of this action, which was unanimously recommended by the Committee at a public meeting.
Marketing agreements, Pistachios, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 983 is proposed to be amended as follows:
7 U.S.C. 601-674.
(a) On and after September 1, 2015, an assessment rate of $0.0035 per pound is established for California, Arizona, and New Mexico pistachios.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 90-11-05 for certain Airbus Model A300 series airplanes and Model A300 B4-600 series airplanes. AD 90-11-05 currently requires repetitive detailed inspections for cracking in the aft hinge brackets of the outer shroud box that is located in the outer wing box, and related investigative and corrective actions if necessary. Since we issued AD 90-11-05, we have determined that a change to certain compliance times is needed. This proposed AD would continue to require doing repetitive detailed inspections for cracking in the hinge brackets of the forward and aft outer shroud boxes that are located in the outer wing box, and related investigative and corrective actions if necessary; and would add airplanes to the applicability. We are proposing this AD to detect and correct cracking of the aft hinge brackets of the outer shroud box; such cracking could affect the structural integrity of the airplane.
We must receive comments on this proposed AD by January 28, 2016.
You may send comments by any of the following methods:
• Federal eRulemaking Portal: Go to
• Fax: 202-493-2251.
• Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.
• Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For service information identified in this proposed AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-2125; fax 425-227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On May 4, 1990, we issued AD 90-11-05, Amendment 39-6603 (55 FR 20129, May 15, 1990). AD 90-11-05 requires actions intended to address an unsafe condition on certain Airbus Model A300 series airplanes and Model A300 B4-600 series airplanes.
Since we issued AD 90-11-05, Amendment 39-6603 (55 FR 20129, May 15, 1990), we have determined that a change to certain compliance times is needed.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2013-0818R1, dated August 20, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Model A300 series airplanes and Model A300 B4-600 series airplanes. The MCAI states:
In the past, aft hinge brackets of the outer wing box were found cracked. Fracture of a bracket would allow vertical movement of the inner shroud box structure, which could result in damage to the top skin of the inboard flap. In addition, the loads carried by the brackets will be transferred to the remaining supports, which may also crack and cause extensive structural damage.
This condition, if not detected and corrected, could affect the structural integrity of the aeroplane.
To address this potential unsafe condition, DGAC [Direction Générale de l'Aviation Civile] France issued AD 1998-449-265(B) (later revised) to require repetitive inspections of the hinge bracket of the outer box and, depending on findings, corrective action(s).
Since that [DGAC] AD was issued, a fleet survey and updated Fatigue and Damage Tolerance analysis were performed in order to substantiate the A300 Extended Service Goal (ESG) and A300-600 Extended Service Goal (ESG2) exercise.
The results of these analyses led to a change in the inspection thresholds and intervals in Flight Cycles (FC) and the introduction of Flight Hours (FH) limits.
For the reasons described above, this [EASA] AD retains the requirements of DGAC France AD 1998-449-265(B)R1, which is superseded, but requires those actions within the new thresholds and intervals given by Airbus Service Bulletin (SB) A300-57-0142 Revision 04 or A300-57-6010 Revision 05, as applicable to aeroplane model.
Revision 1 of this [EASA] AD is issued to add model A300B4-203 aeroplanes to the applicability and compliance time tables. This model is covered by Airbus SB A300-57-0142, but was mistakenly omitted from the original [EASA] AD issue.
The corrective action for a hinge bracket that is cracked or fractured is replacing the damaged hinge bracket with a new bracket.
For airplanes on which a crack is found in one half bracket or both half brackets, related investigative actions include a general visual inspection for secondary damage (
• The inner shroud-box forward attachments and the attachment brackets at the inboard end.
• The inner and outer shroud-box structure, adjacent to the fractured bracket.
• The top skin of the inboard flap.
The corrective action for damage findings during the related investigative action is repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Airbus's EASA Design Organization Approval (DOA).
The compliance time for related investigative actions and corrective actions is before further flight.
You may examine the MCAI in the AD docket on the Internet at
We reviewed the following service information.
• Airbus Service Bulletin A300-57-0142, Revision 04, dated March 30, 2011, which describes procedures for doing an inspection of the forward and aft hinge brackets on the outer shroud box.
• Airbus Service Bulletin A300-57-6010, Revision 05, dated February 21, 2011, which describes procedures for doing an inspection of the forward and aft hinge brackets on the outer shroud box.
• Airbus Service Bulletin A300-57-6011, Revision 2, dated July 10, 1989, which describes procedures for replacing the aft aluminum alloy brackets on the outer shroud box with new steel brackets.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Although the MCAI or service information allows further flight after cracks are found during compliance with the required action, paragraph (g) of this proposed AD would require replacement of any cracked hinge bracket of the outer shroud box before further flight. This replacement before further flight is due to the safety implications and consequences of such cracking.
We estimate that this proposed AD affects 3 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these replacements:
We have received no definitive data that would enable us to provide cost estimates for the on-condition related investigative and corrective actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by January 28, 2016.
This AD replaces AD 90-11-05, Amendment 39-6603 (55 FR 20129, May 15, 1990).
This AD applies to Airbus Model A300 B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes; Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes; and Model A300 B4-605R airplanes; certificated in any category; except airplanes on which Airbus Modification Number 6661 has been embodied during production.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by reports of cracks in the aft hinge brackets of the outer shroud box that is located in the outer wing box, which were found during routine maintenance checks, and our subsequent determination that a change in inspection compliance times is needed. We are issuing this AD to detect and correct cracking of the aft hinge brackets of the outer shroud box; such cracking could affect the structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
At the applicable compliance time specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD: Do a detailed inspection for cracks and fractures of the hinge brackets of the forward and aft outer shroud boxes, in
(1) For Model A300B4-601, B4-603, B4-605R, B4-620, B4-622, B4-2C, and B4-203 airplanes: Do the inspection at the later of the times specified in paragraphs (g)(1)(i) and (g)(1)(ii) of this AD. Repeat the inspection thereafter at intervals not to exceed 1,000 flight cycles or 2,000 flight hours, whichever occurs first.
(i) Before the accumulation of 5,000 flight cycles or 10,400 flight hours since first flight, whichever occurs first.
(ii) Within 100 flight cycles after the effective date of this AD.
(2) For Model A300B2-1C, B2-203, and B2K-3C airplanes: Do the inspection at the later of the times specified in paragraphs (g)(2)(i) and (g)(2)(ii) of this AD. Repeat the inspection thereafter at intervals not to exceed 1,000 flight cycles or 1,000 flight hours, whichever occurs first.
(i) Before the accumulation of 5,000 flight cycles or 5,400 flight hours since first flight, whichever occurs first.
(ii) Within 100 flight cycles after the effective date of this AD.
(3) For Model A300B4-103 airplanes: Do the inspection the later of the times specified in paragraphs (g)(3)(i) and (g)(3)(ii) of this AD. Repeat the inspection thereafter at intervals not to exceed 1,000 flight cycles or 1,300 flight hours, whichever occurs first.
(i) Before the accumulation of 5,000 flight cycles or 6,600 flight hours since first flight, whichever occurs first.
(ii) Within 100 flight cycles after the effective date of this AD.
If any crack or fracture is found during any inspection required by paragraph (g) of this AD: Before further flight, replace the damaged hinge bracket with a new bracket, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-57-143, Revision 2, dated July 10, 1989 (for Model A300 series airplanes); or A300-57-6011, Revision 2, dated July 10, 1989 (for Model A300 B4-600 series airplanes); as applicable.
If any crack or fracture is found during any inspection required by paragraph (g) of this AD: Before further flight, do a general visual inspection for secondary damage (
(1) The inner shroud-box forward attachments and the attachment brackets at the inboard end.
(2) The inner and outer shroud-box structure, adjacent to the fractured bracket.
(3) The top skin of the inboard flap.
(1) Replacement of the hinge bracket, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-57-143, Revision 2, dated July 10, 1989 (for Model A300 series airplanes); or A300-57-6011, Revision 2, dated July 10, 1989 (for Model A300 B4-600 series airplanes); as applicable, terminates the inspection requirements of paragraph (g) of this AD.
(2) Replacement of a hinge bracket before the effective date of this AD, as described in the applicable service information listed in paragraphs (j)(2)(i) through (j)(2)(iv) of this AD, terminates the repetitive inspections required by paragraph (g) of this AD, provided that after the hinge bracket replacement, but before further flight after the effective date of this AD, a one-time detailed inspection of the forward and aft outer shroud box has been done with no cracking found, in accordance with paragraph (g) of this AD. The following service information is not incorporated by reference in this AD.
(i) Airbus Service Bulletin A300-57-143, dated December 17, 1986.
(ii) Airbus Service Bulletin A300-57-143, Revision 1, dated March 19, 1987.
(iii) Airbus Service Bulletin A300-57-6011, dated December 17, 1986.
(iv) Airbus Service Bulletin A300-57-6011, Revision 1, dated March 19, 1987.
(1) This paragraph provides credit for inspections required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using any of the applicable service information listed in paragraphs (k)(1)(i) through (k)(1)(viii) of this AD, which are not incorporated by reference in this AD.
(i) Airbus Service Bulletin A300-57-142, dated December 17, 1986.
(ii) Airbus Service Bulletin A300-57-142, Revision 1, dated April 9, 1990.
(iii) Airbus Service Bulletin A300-57-142, Revision 2, dated January 16, 1991.
(iv) Airbus Service Bulletin A300-57-0142, Revision 03, dated February 22, 1999.
(v) Airbus Service Bulletin A300-57-6010, Revision 1, dated December 14, 1990.
(vi) Airbus Service Bulletin A300-57-6010, Revision 02, dated March 30, 1998.
(vii) Airbus Service Bulletin A300-57-6010, Revision 03, dated September 16, 1998.
(viii) Airbus Service Bulletin A300-57-6010, Revision 04, dated February 22, 1999.
(2) This paragraph provides credit for replacement of the hinge bracket as specified in paragraph (j)(2) of this AD, if the replacement was performed before the effective date of this AD, using any of the applicable service information listed in paragraphs (k)(2)(i) through (k)(2)(iv) of this AD, which is not incorporated by reference in this AD.
(i) Airbus Service Bulletin A300-57-143, dated December 17, 1986.
(ii) Airbus Service Bulletin A300-57-143, Revision 1, dated March 19, 1987.
(iii) Airbus Service Bulletin A300-57-6011, dated December 17, 1986.
(iv) Airbus Service Bulletin A300-57-6011, Revision 1, dated March 19, 1987.
The following provisions also apply to this AD:
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2013-0181R1, dated August 20, 2013, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify Class E airspace extending upward from 700 feet above the surface at Deer Lodge-City-County Airport, Deer Lodge, MT. After a review, the FAA found it necessary to amend the airspace area for the safety and management of standard instrument approach procedures for Instrument Flight Rules (IFR) operations at the airport.
Comments must be received on or before January 28, 2016.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366-9826. You must identify FAA Docket No. FAA-2015-3773; Airspace Docket No. 15-ANM-22, at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Steve Haga, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4563.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at Deer Lodge-City-County Airport, Deer Lodge, MT.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2015-3773; Airspace Docket No. 15-ANM-22.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This document would amend FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700 feet above the surface at Deer Lodge-City-County Airport, Deer Lodge, MT. After a review of the airspace, the FAA found modification necessary for the safety and management of standard instrument approach procedures for IFR operations at the airport. Class E airspace extending upward from 700 feet above the surface would be decreased to within a 6-mile radius of Deer Lodge-City-County Airport.
Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9Z, dated August 6, 2015 and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6-mile radius of Deer Lodge-City-County Airport; that airspace extending upward from 1,200 feet above the surface bounded by a line beginning at lat. 46°41′00″ N., long. 114°08′00″ W.; to lat. 47°03′00″ N., long. 113°33′00″ W.; to lat. 46°28′00″ N., long. 112°15′00″ W.; to lat. 45°41′00″ N., long. 112°13′00″ W.; to lat. 45°44′00″ N., long. 113°03′00″ W.; thence to the point of origin.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) proposes to amend its regulations with regard to compliance information, post-award compliance reviews, and complaint investigations. This proposed rule will improve the EPA's ability to ensure that recipients of federal financial assistance comply with their affirmative obligation under the Civil Rights Act of 1965 and other nondiscrimination statutes not to discriminate, while also ensuring that the EPA has sufficient flexibility and discretion to carry out its nondiscrimination compliance work.
Comments must be received on or before February 12, 2016.
Submit your comments, identified by Docket ID No. EPA-HQ-OA-2013-0031, to the
Jeryl Covington or Helena Wooden-Aguilar, U.S. Environmental Protection Agency, Office of Civil Rights, (Mail Code 1201A), 1200 Pennsylvania Ave. NW., Washington, D,C. 20460, telephone (202) 564-7272, (202) 564-7713 or (202) 564-0792.
The EPA is proposing to amend its regulations implementing title VI of the Civil Rights Act of 1964 (“Title VI”), section 504 of the Rehabilitation Act of 1973 (“Section 504”), section 13 of the Federal Water Pollution Control Act Amendments of 1972 (Pub. L. 92-500), and the Age Discrimination Act of 1975 (“Age Discrimination Act”) in order to enable it to create a model civil rights program which can nimbly and effectively enforce civil rights statutes in the environmental context. Together, these statutes prohibit discrimination on the basis of race, color, national origin, (including discrimination based on language ability or limited English proficiency), disability, sex, and age in programs or activities that receive federal financial assistance. This rulemaking proposes to amend subpart D (Requirements for Applicants and Recipients) and subpart E (Agency Compliance Procedures) provisions regarding compliance information, post-award compliance reviews, and complaint investigations. This rulemaking also proposes to make a technical correction to subpart D to
Applicants for and recipients of EPA assistance already are obligated to comply with Title VI and other nondiscrimination statutes as a condition of receiving EPA assistance. This proposed rule is consistent with the broad discretion that, as recognized by the Supreme Court, has been afforded all federal agencies with regard to the enforcement of federal nondiscrimination obligations,
The EPA has sought to improve its External Compliance and Complaints Program. In 2009, EPA made a commitment to strengthen and revitalize EPA's civil rights program. In addition to increasing staff, securing additional training and improving processes, as part of that effort, in 2010, EPA funded an independent in-depth evaluation of its civil rights program by the firm Deloitte Consulting LLP. Following receipt of the evaluation, the Administrator established an internal Civil Rights Executive Committee to review Deloitte's evaluation, and other sources of information, and make recommendations for building a model civil rights program for EPA. The Executive Committee posted its draft report for public review in February 2012, and the Administrator approved the final report and recommendations on April 13, 2012.
One of the Executive Committee's recommendations was for the EPA to be more proactive in terms of achieving compliance with Title VI and other nondiscrimination obligations by, in part, analyzing data and information obtained from recipients and developing consistent processes. Accordingly, as part of its efforts to create a robust pre- and post- award compliance program (as identified in the EPA Draft EJ 2014 Plan Supplement dated April 12, 2012), the EPA began the process of reevaluating its regulations to identify what data and information it currently obtains from recipients. The EPA first looked to other federal agencies for their best practices in terms of an External Compliance and Complaints Program. Specifically, the EPA evaluated its External Compliance and Complaints Program by comparing its Title VI and other nondiscrimination regulations to those of over twenty other federal agencies. The EPA found that the other agencies' regulations were the same or extremely similar, while the EPA's regulations were different. Many of these other agencies have successful external compliance programs because, in part, their regulations provide for a robust compliance program, (including routine access to recipient data through compliance reports and compliance reviews), and explicitly affirm the agency's discretion to appropriately tailor complaint resolution paths based on the nature and complexity of the allegations presented. While some aspects of EPA's External Compliance and Complaints Program will continue to have unique characteristics that are tailored to EPA's needs, the EPA, recipients, complainants, and industry will benefit from the predictability, consistency and familiarity arising from this effort to conform these aspects of the EPA's regulations with regulations promulgated by other federal agencies with a record of proven success and with the Department of Justice's Coordination Regulations at 28 CFR part 42, subpart F. Thus, this proposed rule will give the EPA a similar level of flexibility and discretion as is afforded to other federal agencies when collecting compliance information, conducting post-award compliance reviews, and investigating complaints.
Finally, these amendments recognize that the EPA's current, self-imposed regulatory deadlines are impracticable given the inherent scientific complexity associated with determining which and how populations are impacted by environmental pollutants; the number of discrimination allegations and theories that may be asserted in any one complaint under Title VI or the other nondiscrimination statutes; and the volume of the complaints received. Indeed, there are several examples of the analytical and logistical complexity of discrimination complaints historically filed with the EPA on its Web site. For instance, in one case alleging disparate health impacts, the EPA developed a pesticide exposure analysis to predict daily air concentrations of a specific pesticide at different distances from an application site, based on information concerning the amount of the pesticide applied during a seven-year period. In order to conduct such an analysis, the EPA had to gather and enter the available raw data into a database and then have the appropriate scientific models created that took into account several factors including, time of day, location, wind speed, proximity and temperature. Next, this analysis was peer reviewed before the EPA was ultimately able to resolve the complaint. The EPA recognizes that not every administrative complaint will require this same level of scientific analysis to determine who is potentially exposed to a particular pollutant. Also, the EPA recognizes that there may be several potential resolution paths, including informal resolution and Alternative Dispute Resolution, even for those cases raising disparate health claims, which the EPA will pursue, when appropriate. By eliminating arbitrary deadlines, the EPA will be better positioned to strategically manage its administrative complaint docket by identifying the specific aspects of individual complaints, such as complaints that present the potential for high-impact resolution. Further, the EPA will be able to explore the best resolution option for those complaints, including tailored goals and benchmarks for specific phases of the individual case, rather than a cookie-cutter approach that assumes all cases should follow the same approach, resolution strategy, and timeframes. Tailoring the appropriate resolution path to each complaint based on the unique factual pattern and legal issues presented, will further allow the EPA to dedicate the appropriate amount of time and resources to resolve each individual complaint.
It is important to note that even with the elimination of the arbitrary deadlines, the EPA must promptly process and investigate complaints. Removal of deadlines will not allow the EPA to unreasonably delay its resolution of complaints because, in part, the definition of a prompt investigation and resolution turns on the factual context of the complaint. Indeed, the language in the proposed rule is subject to judicial review and is consistent with judicial precedent that recognizes that any investigatory timeframe may be affected by the
Thus, based on the entire proposed regulatory amendments that will conform the EPA's regulations to those of more than twenty other federal agencies, the EPA will take another step in its journey to continue to create a model Civil Rights Program. In light of the flexibility, discretion, and accountability for individual cases affirmed by this proposed rule, the EPA will be better able to strategically implement its external civil rights enforcement program to ensure prompt, effective and efficient complaint docket management and to enhance its proactive compliance program.
The EPA is subject to the Department of Justice's Coordination Regulations describing specific implementation, compliance, and enforcement obligations of federal funding agencies under Title VI and similar provisions in federal grant statutes.
The EPA proposes to amend § 7.85(b) by deleting the following text describing when additional information will be sought from recipients—“where there is reason to believe that discrimination may exist in a program or activity receiving EPA assistance.” In this same regulatory section, the EPA also proposes deleting “and shall be accompanied by a written statement summarizing the complaint or setting forth the basis for the belief that discrimination may exist.” These changes reaffirm the agency's existing authority to use compliance reviews to identify and resolve compliance concerns with recipients of EPA financial assistance to prevent costly investigations and litigation. Compliance reviews are an important part of the implementation of all EPA programs and essential to the functioning of comprehensive compliance and enforcement efforts. EPA will work with states and other recipients of financial assistance to ensure that compliance reviews are focused on a review of data and information that is relevant to determining compliance. EPA solicits comments on how to schedule and conduct compliance reviews in ways that minimize unnecessary burdens to both EPA and the recipients.
Further, the revised language is consistent with the regulatory provisions of more than twenty other federal agencies with regard to the routine collection of data and information from recipients. Several of those federal agencies have successful compliance review programs that have been well-established for many years, so the concept of conducting compliance reviews is something with which EPA's external stakeholders should already have a great deal of familiarity based on engagement with those other federal agencies. In other words, this proposed rule is not a significant change, as it affords the EPA the same discretion and flexibility granted to those agencies in their compliance reviews. Such routine collection is also considered a best practice for Title VI programs as reflected in the Department of Justice's Coordination Regulations, which require federal agencies to “provide for the collection of data and information from applicants for and recipients of federal assistance sufficient to permit effective enforcement of Title VI,” 28 CFR 42.406(a). Thus, this proposed rule is intended to clarify the EPA's ability to access such information under the current regulations, while providing the flexibility to establish a successful compliance review program and improve the EPA's External Compliance and Complaints Program. The EPA is requesting comment on EPA's proposed modifications to its compliance review regulations; especially its proposed phased-approach to conducting compliance reviews that is discussed in the accompanying cost analysis.
Additionally, this proposed rule gives the EPA discretion to require recipients to submit compliance reports. This proposed rule would, as demonstrated by the successful compliance report programs of sister agencies, be an invaluable tool in prioritizing complaint investigations, selecting recipients for compliance reviews, and conducting targeted outreach to provide technical assistance. Currently, § 7.85 of the regulation imposes an obligation “to collect, maintain, and on request . . . provide” specific information to the EPA. Similarly, § 7.115 notifies recipients that the EPA may request “data and information” pertaining to any recipient's programs or activities receiving EPA assistance. Consistent with § 7.35, recipients of EPA assistance are also responsible for collecting such reports from any entity through which a recipient operates the program and activity receiving EPA financial assistance, including sub-recipients, licensees, or contractors. In other words, recipients already have a regulatory obligation to collect and maintain relevant information. With this proposed rule, recipients may be asked to submit a report containing the relevant and current information. Adding this proposed rule allows the EPA to more proactively enforce Title VI and other nondiscrimination obligations. This proposed modification makes clear that compliance reports would be required at such times and in such form and containing such information as the EPA may determine to be necessary to enable the EPA to ascertain whether the recipient has complied or is complying with 40 CFR part 7. The proposed regulation, however, does not identify or prescribe the exact content of such reports. The EPA is requesting written comment on the content, frequency and prioritization of which recipients will be expected to submit compliance reports. During the notice and comment period, the EPA will also engage stakeholders through listening sessions in order to explore the compliance reports process and their content. At this time, the EPA's estimate of the potential burden associated with compliance with this proposed regulation is based on assumptions about what type of information a recipient will be required to include in such a report—from involving the compilation or gathering of pre-existing information, including information specifically identified in the current regulations and Standard Form 4700-4, to including information related to public involvement, limited English proficiency, or data and information demonstrating that the program or activity receiving the EPA assistance complies with its nondiscrimination obligations.
The EPA understands that stakeholders may have questions about what specific information should be contained in such reports. Accordingly, the EPA may continue to request compliance reports related to information gathering in the context of compliance reviews and complaint investigations conducted under §§ 7.110, 7.115, and 7.120. However, the EPA does not intend to request compliance reports, unrelated to compliance reviews and complaint investigations, from recipients any sooner than 90 days after it has drafted guidance about such reports, sought
Under the current regulations, on-site reviews for post-award compliance may occur when the Office of Civil Rights (OCR) “has reason to believe that discrimination may be occurring in such programs or activities.” For the reasons set forth above, the EPA proposes amending 40 CFR 7.110(a) and 7.115(a), to affirm the OCR's flexibility and discretion to structure how it conducts pre-award and post-award compliance reviews. This modification is consistent with the Title VI regulations of more than twenty other federal agencies.
Additionally, the EPA proposes to remove the provision to provide post-review notice to a recipient within 180 calendar days from the start of a compliance review or complaint investigation pursuant to 40 CFR 7.115(c)(1). Instead of this calendar deadline, the EPA proposes to conform to the regulations of over twenty other federal agencies that state that complaints will be “promptly” investigated. The EPA proposes to adopt this language because it has found that this self-imposed, inflexible deadline is impracticable given the inherent scientific complexity associated with determining which and how populations are impacted by environmental pollutants; the number of discrimination allegations and theories that may be asserted in any one complaint under Title VI or the other nondiscrimination statutes; and the volume of the complaints received. Without the burden of an unrealistic, self-imposed deadline, the EPA will be in a better position to improve the entire External Compliance and Complaints Program, including the compliance review and reports efforts discussed above. Even without this deadline, the EPA still must promptly investigate complaints.
This proposed rule removes the introductory text of 40 CFR 7.120 concerning the investigation of “all complaints” and to adopt language, substantially similar to the regulations of other federal agencies, requiring investigation of complaints that “indicate a possible failure to comply.” This change will allow the EPA to prioritize and dedicate resources to complaints that—after an initial review—reveal a possible failure to comply. Yet, the proposed rule does not alter the reasons for rejecting or closing a complaint upon which the EPA and other agencies have relied. Instead, the proposed regulatory language clarifies the agency's discretion to pursue a path to resolution in light of the particular facts of each case. The EPA seeks to conform to the regulatory text of its sister agencies in order to affirm that it will not seek to impose a one-size fits all approach to resolution. In other words, the proposed rule is intended to reflect that a path to resolution must be tailored to the specific facts of the case and such a path may not be identical for every complaint. Not every complaint, for example, will require the completion of a costly and time-consuming investigation in order to resolve it.
This proposed rule also removes the deadline for notifying complainants and recipients of receipt of a complaint against the recipient and for reviewing a complaint for acceptance, rejection, or referral to the appropriate federal agency. Currently, the EPA's notification regulation requires the EPA to notify the complainant and the recipient of receipt of a complaint within five calendar days under 40 CFR 7.120(c). The current regulations also require the EPA to initiate complaint processing procedures by conducting a jurisdictional review to determine whether to accept, reject, or refer a complaint within twenty calendar days of acknowledgement of the complaint.
The current regulatory provisions imposing a deadline on complaint notification and jurisdictional review are unique to the EPA. This proposed rule removes these deadlines and, as with complaint investigations, it proposes that the EPA will “promptly” acknowledge receipt of a complaint and issue a decision on whether a complaint is accepted, rejected, or referred. The substitution of “promptly” for specific deadlines ensures EPA has the flexibility to improve its External Compliance and Complaints Program. The EPA believes this removal is not only reasonable, but will provide EPA with the flexibility and time necessary to complete a comprehensive and thorough initial review to identify the most appropriate path to resolve the complaint. Although, as reflected in the regulations of more than twenty other federal agencies, it is not common practice to include specific deadlines, the EPA is fully committed to processing complaints and compliance reviews expeditiously. In fact, the EPA intends, like other federal agencies, to create internal procedures and policies to provide guidance to staff, including the expectation that a determination of what constitutes reasonably prompt action varies based on the stage of administrative processing. For instance, a purely administrative task, (such as, issuing an acknowledgment of a correspondence), will take significantly less time than the more complex and nuance evaluation associated with conducting jurisdictional reviews, investigations and compliance reviews. Nonetheless, as discussed above with complaint investigations, because of the volume and complexity of the complaints that the EPA receives, these self-imposed regulatory deadlines have proven to be impracticable, even at these early stages.
The EPA proposes to remove the reference to expired OMB control number 2000-0006 which currently appears after the text of 40 CFR 7.80 and 7.85. The OMB control number for the collection of information under the EPA's 40 CFR part 7 regulations is OMB control number 2030-0020. Because no person is required to respond to an information collection request regulated by the Paperwork Reduction Act unless a valid control number assigned by OMB is displayed in 40 CFR part 9, another part of the Code of Federal Regulations, a valid
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. The EPA prepared an analysis of the potential costs and benefits associated with this
This action does not impose any new information collection burden. This proposed rule will allow the EPA to enforce civil rights laws. It therefore falls under the exemption to the Paperwork Reduction Act found at 44 U.S.C. 3518(e) that exempts agencies from Paperwork Reduction Act requirements when they are exercising their substantive enforcement authority regarding civil rights laws. Even though this action is covered by the section 3518(e) exemption, this action is covered by an Information Collection Request that was approved by the Office of Management and Budget in June 2015. The information collection request contained in the existing regulations at 40 CFR part 7 was assigned OMB control number 2030-0020. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. The deadline and technical amendments being proposed are not expected to have a direct impact on any grant recipients. The direct cost to any particular entity under a compliance review will not increase because they already are potentially subject to compliance reviews under the existing regulations. The impact of the proposed amendments related to compliance report requirements for any particular entity would only be the cost of assembling data and information that it already must collect and maintain under the existing regulations. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.
Although this proposed rule will not have a significant economic impact on a substantial number of small entities, the EPA nonetheless has tried to reduce the impact of this proposed rule on small entities. (See Economic Analysis in the docket for this rulemaking for more detailed information on potential impacts.)
We continue to be interested in the potential impacts of this proposed rule on small entities and welcome comments on issues relating to such impacts.
This action does not contain any mandate as described in UMRA, 2 U.S.C. 1531 through 1538, and does not significantly or uniquely affect small governments. Because this proposed rule enforces statutory rights that prohibit discrimination as described in the exception at 2 U.S.C. 1503(2), it is not subject to the requirements of section 202 or 205 of the UMRA.
This proposed rule 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.
In the spirit of Executive Order 13132, and consistent with the EPA policy to promote communications between the EPA and state and local governments, the EPA specifically solicits comment on this proposed rule from state and local officials.
This proposed rule does not directly impose any new obligations on the federally recognized tribes that receive or apply for EPA financial assistance. Moreover, the proposed rule would not impose compliance costs on tribes or preempt tribal law. Therefore, consultation under Executive Order 13175 is not required.
However, EPA welcomes the views of tribes and is interested in considering any comments that tribes may offer on the proposed rule.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This proposed rule does not involve technical standards.
Executive Order 12898 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.
The EPA believes that improving its External Compliance and Complaints Program will have a positive impact on the agency's efforts to advance environmental justice. More precisely, by bringing the EPA's regulations into alignment with the regulations of more than twenty other agencies, the EPA will have the regulatory tools necessary to exercise its discretion to make the complex determination of what sorts of disparate impacts upon communities constitute “sufficiently significant social problems,” and are “readily enough remediable, to warrant altering the practices of the federal grantees that had produced those impacts.”
Environmental protection, Administrative practice and procedure, Age discrimination, Civil rights, Equal employment opportunity, Individuals with disabilities, Reporting and
Environmental protection, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, the EPA proposes to amend title 40, chapter I of the Code of Federal Regulations as follows:
42 U.S.C. 2000d to 200d-7 and 6101
The revisions and additions read as follows:
(b)
(f)
(a)
(c) * * * (1) The OCR will notify the recipient in writing by certified mail, return receipt requested, of:
The OCR will make a prompt investigation whenever a complaint indicates a possible failure to comply.
(c)
(d) * * *
(1) * * * (i) After the acknowledgment, the OCR will promptly review the complaint for acceptance, rejection, or referral to the appropriate Federal agency.
7 U.S.C. 135
Federal Communications Commission.
Proposed rule.
This document proposes revisions to Wireless Emergency Alert (WEA) rules designed to improve the clarity of WEA messages, ensure that WEA alerts reach only those individuals to whom a WEA alert is relevant, and establish a WEA testing program that will improve the effectiveness of the system for public safety officials and the public. This document also seeks comment on issues necessary to ensure that WEA keeps pace with evolving technologies and thus empowers communities to initiate these life-saving alerts. By this action, the Commission
Comments are due on or before January 13, 2016 and reply comments are due on or before February 12, 2016. Written Paperwork Reduction Act (PRA) comments on the proposed information collection requirements contained herein must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before February 12, 2016.
You may submit comments, identified by PS Docket No. 15-91, by any of the following methods:
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For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Lisa Fowlkes, Deputy Bureau Chief, Public Safety and Homeland Security Bureau, at (202) 418-7452, or by email at
This is a summary of the Commission's Notice of Proposed Rulemaking in PS Docket No. 15-91, FCC 15-154, released on November 19, 2015. The document is available for download at
This document contains proposed new and modified information collection requirements. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, 109 Stat 163 (1995). The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on the information collection requirements contained in this document, as required by the PRA. Public and agency comments on the PRA proposed information collection requirements are due February 12, 2016. Comments should address: (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 burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) 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. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Notice of Proposed Rulemaking (Notice). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for
2. With this Notice, the Commission takes another step towards strengthening Wireless Emergency Alerts (WEA) by proposing revisions to the WEA rules to empower alert originators to participate more fully in WEA, and by enhancing the utility of WEA as an alerting tool. The Commission's proposals fall into three categories, improving WEA messaging, geo-targeting, and testing and proficiency training. With respect to WEA messaging, in this Notice, the Commission proposes to expand the maximum character length of WEA messages from 90 to a maximum of 360 characters; create a new class of WEA alerts for Emergency Government Information; and remove the prohibition on embedded references to allow the provision of phone numbers and URLs in WEA alerts. The Commission also seeks comment on technically feasible approaches to supplement WEA alerts with multimedia, and with the capability to offer alerts in languages other than English. With respect to geo-targeting the Commission proposes to require Participating Commercial Mobile Service (CMS) Providers to distribute WEA messages to a geographic area that more accurately matches the target area provided by the alert originator. With respect to WEA testing, the Commission proposes to establish requirements and procedures for state and local WEA testing, and on alert logging requirements for Participating CMS Provider Alert Gateways, and seeks comment on test reporting requirements based, in part, upon the data produced by this logging function. The Commission seeks comment on methods of increasing participation in WEA by both consumers and CMS Providers. The Commission proposes to amend the WEA rules to allow use of the emergency alerting attention signal for Public Service Announcements (PSAs) designed to raise public awareness about Wireless Emergency Alerts (WEA). The Commission seeks comment on whether it should begin to test the broadcast back-up to the C-interface. Finally, the Commission seeks comment on whether it should amend the Commission's WEA prioritization rules such that WEA alerts take priority over all mobile device functions except certain voice and data sessions.
3. This Notice represents another step towards achieving one of the Commission's highest priorities—“to ensure that all Americans have the capability to receive timely and accurate alerts, warnings and critical information regarding disasters and other emergencies.” This Notice also is consistent with the Commission's obligation under Executive Order 13407 to “adopt rules to ensure that communications systems have the capacity to transmit alerts and warnings to the public as part of the public alert and warning system,” and the Commission's mandate under the Communications Act to promote the safety of life and property through the use of wire and radio communication. The Commission takes these steps as part of an overarching strategy to advance the nation's alerting capability, which includes both WEA and the Emergency Alert System (EAS), to keep pace with evolving technologies and to empower communities to initiate life-saving alerts.
4. Authority for the actions proposed in the Notice may be found in sections 1, 4(i) and (o), 201, 303(r), 403, and 706 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (o), 201, 303(r), 403, and 606, as well as sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN Act.
5. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, 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 which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
6. Nationwide, there are a total of approximately 28.2 million small businesses, according to the SBA. In addition, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,315 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2007 indicate that there were 89,476 local governmental jurisdictions in the United States. The Commission estimates that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small.
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9. On January 26, 2001, the Commission completed the auction of 422 C and F Block Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29 claimed small business status. Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. On February 15, 2005, the Commission completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction No. 58. Of the 24 winning bidders in that auction, 16 claimed small business status and won 156 licenses. On May 21, 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in Auction No. 71. Of the 12 winning bidders in that auction, five claimed small business status and won 18 licenses. On August 20, 2008, the Commission completed the auction of 20 C-, D-, E-, and F-Block Broadband PCS licenses in Auction No. 78. Of the eight winning bidders for Broadband PCS licenses in that auction, six claimed small business status and won 14 licenses.
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14. In 2007, the Commission reexamined its rules governing the 700 MHz band in the
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18. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won 4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.
19. In addition, the SBA's Cable Television Distribution Services small business size standard is applicable to EBS. There are presently 2,436 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. Thus, the Commission estimates that at least 2,336 licensees are small businesses. Since 2007,
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24. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and the Commission's estimates of small businesses to which they apply may be over-inclusive to this extent. There are also 2,117 low power television stations (LPTV). Given the nature of this service, the Commission will presume that all LPTV licensees qualify as small entities under the above SBA small business size standard.
25. The Commission has, under SBA regulations, estimated the number of licensed NCE television stations to be 380. The Commission notes, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. The Commission's estimate, therefore, likely overstates the number of small entities that might be affected by the Commission's action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. The Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.
26. This Notice proposes new or modified reporting or recordkeeping requirements. Any changes to the Part 10 WEA technical rules, including message and geo-targeting requirements, may result in modified reporting and recordkeeping requirements necessary to satisfy the statutory requirements of the WARN Act (1) that Commission receive notice of election by all CMS providers concerning whether they will participate in the WEA; (2) CMS providers electing not to transmit, in part or in whole, in the WEA must provide clear and conspicuous notice, which takes into account the needs of persons with disabilities, to new subscribers of its non-election or partial election at the point of sale; and (3) CMS providers electing not to transmit WEA Alert messages, in part or in whole, must also provide clear and conspicuous notice, which takes into account the needs of persons with disabilities, to existing subscribers of its non-election or partial election by means of an announcement amending the existing subscriber's service agreement. Although the Notice does not propose revising the existing election procedures, the Commission notes that the CSRIC IV recommends that the Commission modify the current election procedures and provide Participating CMS Providers an opportunity to revise previous WEA election to comply only with the WEA rules that existed at the time of their initial election, and not those adopted subsequently. Moreover, amending the Commission's rules to require Participating CMS Providers to log the receipt of alerts and report the results of State/Local WEA Tests to the Commission may result in increasing the reporting and recordkeeping costs and burdens approved under OMB Control No. 3060-1113, ICR Reference No. 201404-3060-021. Test reporting and alert logging requirements may require small businesses to contract with engineers in order to make modifications to Participating CMS Provider Alert Gateways and mobile devices.
27. Additionally, any changes to the existing WEA testing regime to require Participating CMS Providers to support State and Local testing will entail some form of recordkeeping that will be used by the Commission to satisfy the statutory requirement of the WARN Act that the Commission “shall require by regulation technical testing for commercial mobile service providers
28. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”
29. As noted in paragraph 1 above, this Notice initiates a rulemaking to update the rules governing the WEA system by which Participating CMS providers may elect to transmit emergency alerts to the public, a goal mandated by the WARN Act and consistent with the Commission's obligation to protect the lives and property of the public. Primarily, this Notice seeks comment on three general categories of proposed rule changes: messaging, geo-targeting and testing.
30. With regard to WEA messaging and geo-targeting, this Notice seeks comment on a number of options to minimize the economic impact on small entities. First, the Notice proposes to expand the maximum character length of WEA messages from 90 to 360 characters and also seeks comment on alternatives such as rendering 140 character WEA alerts. The Notice also seeks comment on the extent Participating CMS Providers can leverage existing technology and best practices to minimize costs. Additionally, the Notice seeks comment on whether existing software is capable of rendering 360-character WEA alerts. Further, the Notice seeks comment on developing an appropriate timeframe for Participating CMS Providers to begin rendering longer WEA alerts in order to mitigate costs.
31. Second, the Notice proposes to create a new class of WEA alerts for Emergency Government Information. In that connection, the Notice seeks comment on measures to mitigate costs, including the utility of providing alert originators training and guidelines to minimize burdens. Further, the Notice seeks comment on developing an appropriate timeframe for Participating CMS Providers to begin rendering Emergency Government Information alerts in order to mitigate costs.
32. Third, the Notice proposes to allow the provision of phone numbers and URLs in WEA alerts. The Notice seeks comment, in the alternative, on whether embedded references should be allowed only in AMBER Alerts. The Notice seeks comment on developing an appropriate timeframe for Participating CMS Providers to begin rendering embedded phone numbers and URLs in WEA alerts in order to mitigate costs. Additionally, the Notice seeks comment on leveraging existing technology to supplement WEA alerts with multimedia.
33. Fourth, the Notice proposes to require Participating CMS Providers to geo-target WEA messages more precisely. The Notice seeks comment on leveraging existing technology and best practices, including network-side enhancement already voluntarily undertaken by Participating CMS Providers, to more precisely geo-target WEA alerts. The Notice also seeks comment on alternatives such as allowing Participating CMS Providers to render geo-targeted WEA alerts to the area that approximates the alert target area. The Notice also seeks comment on the extent “device-assisted” geo-targeting solutions already exist and can be implemented to “filter” WEA alerts based on coordinates as well as the extent that third party developers might create applications to improve geo-targeting. Further, the Notice seeks comment on developing an appropriate timeframe for Participating CMS Providers to begin geo-targeting WEA alerts in order to mitigate costs.
34. With respect to WEA testing and proficiency training, this Notice proposes to establish requirements and procedures governing Participating CMS Provider support for state and local WEA testing, and seeks comment on alert logging requirements for Participating CMS Provider Alert Gateways and test reporting requirements based, in part, upon the data produced by this logging function. First, in order to minimize the costs associated with supporting state and local testing, the Notice seeks comment on (1) leveraging the existing RMT testing protocol and (2) the use of best practices and standards developed through a public/private partnership including geo-targeting tests to localized areas and providing an opportunity for volunteers to participate in WEA tests. Second, the Notice seeks comment on how to minimize the costs associated with testing reporting requirements for state and local tests, including leveraging existing logging functionality and best practices, as well as relying on an informal approach to reporting test results and the extent that third-party developers may automate the proposed test filing procedures. The Notice seeks comment on the appropriate timeframe within which Participating CMS Providers should comply with the proposed testing requirements.
35. In commenting on these questions, commenters are invited to propose steps that the Commission may take to minimize any significant economic impact on small entities. For example, the Notice seeks comment on whether the benefits of extending liability protection to these proposals sufficiently outweigh the costs to Participating CMS Providers for participating in WEA. The Notice also seeks comment on the feasibility of its messaging, geo-targeting and testing proposals as well as an appropriate transition period from the current technical and testing requirements to the proposed rule changes contained in the Notice. When considering proposals made by other parties, commenters are invited to propose significant alternatives that serve the goals of these proposals.
36. None
1. Under the Commission's rules, WEA messages are currently limited to a maximum length of 90 characters. In the
2. In its recent report CSRIC IV finds that the majority of commercial mobile wireless networks and network technologies, such as GSM, UMTS, and LTE, can support messages with a larger number of characters. Moreover, CSRIC IV recommends that the Commission expand the character limit for WEA messages sent using 4G LTE-based infrastructure and devices to a maximum of 280 characters, pending confirmation by the Alliance for Telecommunications Industry Solutions (ATIS), and the Telecommunications Industry Association (TIA) (jointly, ATIS/TIA) that such an increase of the character length is feasible. CSRIC IV recommends that the necessary modifications to industry standards supporting the coexistence of 90- and 280-character alerts can be completed within one year of the issuance of an appropriate report and order. Subsequent to CSRIC IV's recommendations, ATIS/TIA released its
3. Consistent with the CSRIC IV recommendations and the recent ATIS/TIA study, the Commission propose to amend section 10.430 of its rules to expand the maximum permissible length of WEA messages from 90 to 360 characters of alphanumeric text. Specifically, the Commission proposes to extend the character limit for those networks and devices for which it is technically feasible to deliver and process 360-character messages, as discussed in greater detail below, while continuing to allow the delivery of 90-character messages on 2G and 3G networks and devices. In this regard, the Commission seeks to balance the capabilities of 4G LTE networks with the limitations of legacy networks. The Commission seeks comment on this proposal, and the extent to which it would serve the needs of state and local governments to provide more detailed alert information to the public sufficient to motivate appropriate and swift action to save lives and protect property.
4. Expanding the maximum character length for WEA messages to 360 characters could address alert originators' concerns that they are unable to motivate the public to take appropriate protective action using messages limited to 90 characters. According to the National Center for Missing and Exploited Children (NCMEC), “[i]t can be extremely difficult to fit sufficient descriptive information within a 90-character limit in a meaningful and understandable manner that doesn't confuse the public.” The National Weather Service (NWS) states that increasing the maximum WEA message length “would improve the ability of NWS and non-weather alerting authorities to convey critical life-saving information over WEA, such as spelling out key terms which are not abbreviated and may not be well understood.” CSRIC IV and START concur that longer alert messages make it easier for the public to understand the nature of an emergency and the responsive action alert originators advise them to take. For example, according to the
5. If the Commission expands the maximum character length for WEA messages, it seeks comment on whether 360 characters is the optimal maximum. The Commission seeks comment on the number of characters necessary to provide the public with sufficiently detailed information about the emergency situations that WEA is designed to address, and to encourage swift and effective public action in response to such emergencies. For example, the
6. The Commission seeks comment on the technical feasibility of supporting WEA messages longer than 90 characters. As confirmed by ATIS/TIA, CSRIC IV states that 4G LTE networks and devices are capable of delivering 360-character alerts, and the Commission anticipate that future network iterations will continue to support messages with a maximum character length of at least 360 characters. The Commission observes that the nation's four largest CMS Providers have all but completed their transition to 4G technologies. In addition to the nation's largest CMS Providers, smaller Participating CMS Providers are also transitioning to 4G technologies; for example, more than 93 percent of U.S. Cellular's customers have access to 4G LTE, and Sprint and NetAmerica Alliance have partnered with the Competitive Carriers Association to accelerate smaller Participating CMS Providers deployment of 4G LTE across rural America. The Commission also seeks comment regarding how the incorporation of the additional WEA enhancements the Commission proposes below (such as support for multimedia and multilingual alerts) may affect the implementation of WEA messages with a maximum length of 360 displayable characters. For instance, would the metadata associated with the
7. CSRIC IV concludes that the existing 90-character limit should remain for legacy networks and devices due to these networks' limitations and its expectation that the overwhelming majority of CMS Provider infrastructure and mobile devices will soon achieve 4G LTE capability. We seek comment on this view. The Commission seeks comment on whether the coexistence of 90- and 360-character alerts might cause public confusion. The Commission also seeks comment on the extent to which it would be feasible for alert originators and Participating CMS Providers to support the coexistence of both 90- and 360-character alerts.
8. CSRIC IV considered multiple approaches that would accommodate the existing base of legacy networks and mobile devices, while accounting for 4G technology's ability to deliver and receive longer messages. For example, one approach would be for the alert originator to “create two WEA [a]lert [m]essages, the first adhering to the 90 displayable character maximum and the second to support the longer displayable character length.” Alternatively, one WEA message could be generated, the first 90 characters could be delivered to legacy devices, “and the full longer displayable characters [could be] delivered to future enhanced WEA LTE mobile devices.” A third alternative would be the transmission of a longer message in four parts over legacy networks (and in a single message over 4G networks, where feasible). The Commission seeks comment on the feasibility of these alternatives and any other approaches for implementing an expanded WEA message. FEMA states that standards applicable to the Integrated Public Alert and Warning System (IPAWS) would need to be updated in order for IPAWS to accept longer messages, and that a software update would likely be necessary to enable alert origination software to initiate longer messages. NWS states that it could provide a longer WEA message in addition to the 90-character message, if necessary. Is commercially available alert origination software capable of automatically generating 90- and 360-character alerts from one message? Are there additional technological solutions, not considered by CSRIC IV, which would more effectively enable the transmission of longer alerts across all technologies, including legacy networks and devices? The Commission also seeks comment on the extent to which existing standards would need to be modified to accommodate the coexistence of 90- and 360-character maximum messages.
9. The Commission proposes that Participating CMS Providers should be required to come into compliance with its proposed WEA messaging rules within one year of the adoption of final rules. With respect to the Commission's proposal to allow the continued delivery of 90-character messages to legacy networks and devices, would it be preferable to adopt a date certain by which all Participating CMS Providers must be able to deliver 360-character WEA messages, rather than allowing the co-existence of 90- and 360-character WEA messages? If so, in what timeframe should the Commission sunset the 90-character WEA message length? Should the date of any sunset be contingent upon the satisfaction of a particular condition, such as the achievement of a particular milestone (
10. Finally, the Commission seeks comment on the costs associated with changing the maximum character length for WEA messages. To what extent can Participating CMS Providers leverage existing resources and infrastructure deployed for commercial purposes to satisfy the requirement the Commission proposes today? What additional network resources, if any, are necessary to comply with the Commission's proposed rule? If the delivery of expanded WEA messages can be accomplished through a software upgrade, would such upgrades fall within the scope of Participating CMS Providers' fixed-maintenance contracts, thus resulting in a cost of near zero? The Commission also seeks comment on mitigating factors that could offset potential costs, including those for small and rural Participating CMS Providers. The Commission seeks comment on any burden associated with allowing Participating CMS Providers to continue delivering shorter WEA messages using legacy devices and networks, while simultaneously delivering the expanded WEA messages on their 4G networks. The Commission also seeks comment on the costs and benefits of any potential alternative approaches. Specifically, the Commission seeks comment on the extent of cost savings expected to result from expanding the maximum character length to 360, as opposed to requiring that longer messages be issued as sequential 90-character alerts.
11. The WEA rules currently provide for three classifications of WEA message: Presidential Alerts, Imminent Threat Alerts, and AMBER Alerts. For an alert to be issued through WEA, it must fall within one of these three categories. In the
12. The Commission proposes to amend the WEA rules to create an additional class of WEA message, “Emergency Government Information.” The Commission proposes to define an Emergency Government Information message as an essential public safety advisory that prescribes one or more actions likely to save lives and/or safeguard property during an emergency. According to CSRIC IV, examples of Emergency Government Information messages include “boil water” advisories, and messages indicating shelter locations in the event of long-term or severe flooding, hurricanes, or tornados. The Commission seeks comment on its proposed definition of Emergency Government Information, and on whether enabling the delivery of Emergency Government Information messages would expand the alerting toolkit available to government entities in a meaningful way, complementing existing WEA classes and allowing the provision of more detailed information about how to protect life and property.
13. The Commission seeks comment on how it can ensure that Emergency Government Information messages are used appropriately and in circumstances where they would be most effective at precipitating protective action. According to CSRIC IV, “[a]n
14. The Commission seeks comment on the benefits and costs of creating this additional class of WEA alert. Would such messages help to save lives and protect property? What costs, if any, would be imposed on Participating CMS Providers, alert originators, and consumers? Are there any measures that could be taken to mitigate these costs? Is alert origination software currently capable of issuing Emergency Government Information messages using predefined CAP fields and free-form text, or would a software update be required? Would creating an additional category of alerts desensitize the public to other types of alerts? The Commission believes that Participating CMS Providers could use the same hardware to deliver an Emergency Government Information WEA message as they would to deliver another classification of WEA message and seek comment on this view.
15. As required by the WARN Act, the Commission proposes to amend Section 10.280 of the Commission's rules to allow Participating CMS Providers to enable consumers to opt out of receiving Emergency Government Information messages. CSRIC IV recommends that subscribers should be allowed to opt out of receiving Emergency Government Information, and states that this option need not imply a new device setting, but rather, should be combined with existing settings on the device. The CSRIC IV's report states that the subscriber opt-out capability recommended to be offered for Emergency Government Information would need to be “defined and specified in the Joint ATIS/TIA mobile Device Behavior Specification” in order to ensure that the option to opt out is provided consistently and uniformly across devices, operating systems and software versions. Is this the case? What, if any, other standards or specifications would need to be modified in order to support the provision of Emergency Government Information? Alternatively, would it be preferable for Emergency Government Information to be presented to consumers on an opt-in basis? Would providing such an opt-in option be consistent with the WARN Act?
16. The Commission also seeks comment on whether there are other classes of alerts that should be added to WEA. FEMA, for example, asserts that the Commission should revisit the manner in which WEA messages are classified, and recommends that the Commission amend the Commission's rules to create the following classes: Federal Alerts (authorized by the President), AMBER Alerts, Severe Weather Alerts, and Local Threat Alerts, each of which would have its own unique attention signal and vibration cadence. As recommended by FEMA, Local Threat Alerts are alerts that may not meet each of the criteria for an imminent threat alert (certainty, urgency and immediacy) but nonetheless may be appropriate for a WEA alert. The Commission seeks comment on this approach. Are additional alert types, such as those currently offered by private mass notifications systems on an opt-in basis, appropriate for WEA? Such additional alert notifications would include weather-related closings, severe traffic incidents, and road closures due to special events. Would such additional classifications help adequately capture the variety of events that merit an alert or warning, and help provide clear instructions to alert originators on the kinds of events where use of the WEA system is appropriate? In addition, could additional alert types provide consumers with a more nuanced range of opt-out choices, in terms of the types of alerts they choose to receive, that could encourage consumer participation in WEA? Parties suggesting additional classes should explain how their proposed classes substantively differ from any of the current classes, or the proposed Emergency Government Information class, and the benefits of their proposed class, including why an additional or alternative alert classification is necessary to help save lives and protect property.
17. The WEA rules currently prohibit the inclusion of embedded references, including telephone numbers and URLs, in all WEA messages except the Presidential Alert. In the
18. The WEA rules currently provide minimum standards for text-based alerts only. The Commission did not adopt technical requirements for WEA alerts with multimedia capability in the
19. Given the advancement of time and technology since the adoption of the WEA rules, the Commission believes that it would serve the public interest to reconsider the prohibition on the inclusion of telephone numbers and URLs in WEA messages. The Commission propose to remove Section 10.440 from its Part 10 WEA rules, in order to allow embedded phone numbers and URLs to be included in WEA messages. In doing so, the Commission seeks to ensure that Americans may be provided with an immediately accessible method of contacting public safety officials or finding additional information about emergency situations by leveraging the existing capabilities of Participating CMS Provider networks and devices. The Commission believes this approach furthers its goal of using the system to advance public safety. The Commission seeks comment on this proposal and on the Commission's rationale.
20. The Commission believes that allowing embedded references in WEA messages will improve alert quality and accessibility by offering additional,
21. The Commission believes the potential benefits of allowing embedded phone numbers and URLs in WEA messages may be particularly applicable where AMBER Alerts are concerned. NCMEC states that the ability to provide a URL directing recipients to a Web site specifically used for AMBER Alerts would be the most important possible enhancement to WEA that the Commission can require at this time. FEMA recommends that a phone number be included in AMBER Alerts, noting that the ATIS/TIA specification for the interface between IPAWS and participating wireless carrier gateways already contains provisions for including a phone number. Every type of missing child advisory issued by NCMEC (
22. The Commission seeks comment regarding the potential costs that may be associated with incorporating embedded references in WEA messages, including any costs associated with the potential for increased call volume or network congestion. If alerts were more narrowly geo-targeted, would these potential burdens be mitigated? What network management techniques could be deployed to counter any potential network congestion? The Commission also seeks comment on any technical considerations that the Commission should take into account with regard to Participating CMS Providers' ability to support embedded references in WEA messages. According to CSRIC IV, adding URLs to WEA messages would necessitate the revision of standards for displaying content generated by the URL. The Commission seeks comment on CSRIC IV's assertion. What technical challenges would need to be addressed to support the synchronized push of content to be stored in cache for all URL links used in WEA CAP messages? Would it be possible to include interactive links in WEA messages, such that an alert recipient could provide real-time feedback to alert originators that would improve emergency responders' situational awareness and help ensure that adequate and appropriate resources are deployed to the scene of the emergency? For example, a WEA message warning about a developing fire in a multi-story building could ask alert recipients whether they see smoke by responding “yes” or “no,” helping emergency responders make decisions about building ventilation that could help to prevent the fire from further spreading. The Commission observes that the
23. The Commission also seeks comment on the efficacy of using embedded URLs to enhance accessibility of WEA for people with disabilities, senior citizens and persons with limited English proficiency, in addition to the general public. Wireless RERC conducted field trials and focus groups regarding disability access to WEA messages and found that users with sensory disabilities prefer to have access to additional information beyond that supplied by the 90-character alert via URLs. The Commission seeks comment on this conclusion, and on how the inclusion of URLs and phone numbers may facilitate access to information. For example, could a URL provide non-English speakers with access to emergency information in their preferred language?
24. Finally, the Commission seeks comment on whether it would serve the public interest to adopt rules governing the provision of multimedia-based alerts, including alerts that contain high-information maps that demonstrate the location of the alert recipient relative to an area affected by an imminent threat, and images of children, suspected abductors and vehicles in AMBER Alerts. The Commission believes that providing multimedia-based alerts could significantly enhance the usefulness of the system, thereby advancing public safety goals. For example, NWS strongly supports the incorporation of graphical content in WEA messages, stating that this improvement would provide greater clarity in WEA messaging. The Commission recognizes that CSRIC IV concludes that it is impractical for current cell broadcast technology, including 4G LTE, to support sending multimedia, such as images and maps, as part of WEA messages without “significant impacts” to Participating CMS Provider infrastructure. However, the Commission observes that mobile alerting technology vendors and Participating CMS Providers agree that other technologies may be able to support multimedia functionality. How
25. The WARN Act allows Participating CMS Providers to transmit alerts in languages other than English, if technically feasible. The Commission determined in the
26. The Commission seeks comment on whether the fundamental technical problems that limited the ability of Participating CMS Providers in 2008 to provide alerts in languages other than English remain barriers to implementing Congress' vision. To the extent these problems remain, are they device-based, network-based, or both? FEMA recommends that WEA should be enhanced to support delivery of alert messages in languages other than English if the alert is made available by the originator in other languages. FEMA observes that “[t]he IPAWS system as currently deployed and based upon the Common Alerting Protocol standards is capable of supporting multiple languages beyond English if the originator of the alert message provides the alert in additional languages.” Alert originators state that they want to “[u]se language in the WEA Alert Message that best conveys who is at risk given message length constraints.” That could reasonably include a language, other than English, that best serves a particular community. Accordingly, the Commission seeks comment on the benefits of supporting multilingual WEA alerts in order to advance the Commission's goals for promoting community participation.
27. In raising the issue of multilingual alerts, the Commission notes that the Multicultural Media, Telecom and Internet Council (MMTC) has highlighted the importance of providing information about emergencies in languages other than English on numerous occasions. The Commission agrees with MMTC that all Americans, regardless of the language they speak, should have access to emergency information. In this
28. In the
29. Since the Commission adopted its WEA geo-targeting rules in 2008, there has been considerable interest among alert originators in developing more finely targeted WEA messages. Additionally, research scientists at Carnegie Mellon have developed several polygon compression techniques that enable efficient transmission of polygons representing geographical targets. These techniques are intended to enable compressed polygon vertices to be embedded in emergency alert messages that have strict length restrictions, such as WEA messages.
30. Further, CSRIC IV and START observe that the effectiveness of WEA alert messages may remain suppressed until they can be distributed to finer geospatial areas, so that messages only reach the people who are at risk. “[O]therwise, people who receive WEA Alert Messages may be trained to think they don't apply to them.” As CSRIC IV notes, some Participating CMS Providers have made voluntary enhancements to geo-targeting that exceed the Commission's current county-level geo-targeting rules. The enhancements include using an algorithm to geo-target the WEA broadcast to transmission sites capable of best approximating the polygon-based alert area provided by the alert originator, and, in LTE networks, using cell sectorization, a technique whereby a WEA alert is broadcast to only certain sectors within a transmission site. CSRIC IV thus recommends that the Commission amend Section 10.450 of its WEA rules to state “that a Participating CMS Provider may voluntarily transmit any Alert Message that is specified by the Alert Originator using a geocode, circle, or polygon, to an area that best approximates the geocode, circle, or polygon given the constraints of CMS Provider infrastructure topology, propagation area, and other radio and network characteristics.” CSRIC IV further recommends that, at a minimum, the Commission should adopt a geo-targeting standard constituting an area no larger than the coverage area of a single transmission site.
31. The Commission proposes to revise the Commission's rules to require that Participating CMS Providers must transmit any alert message that is specified by a geocode, circle, or polygon to a target area not larger than
32. The Commission seeks comment on the technical feasibility of complying with these more granular geo-targeting proposals. Both the WARN Act and the Commission envisioned that WEA technology would evolve to encompass more precisely geo-targeted alerts. In light of the advances in network technology observed by CSRIC IV, specifically network-based solutions already deployed by Participating CMS Providers, is it technically feasible for Participating CMS Providers, utilizing currently available technology, to more accurately geo-target WEA alerts? The Commission specifically seeks comment on the state of network-based enhancements needed to implement this process. CSRIC IV states that “the algorithms for mapping the intended alert area to the relevant cell sites/sectors in the CMSP network are considered proprietary and there is no standard method to perform this mapping.” How can the Commission ensure that all Participating CMS Providers have access to any relevant techniques that are necessary to implement more granular geo-targeting?
33. Further, the Commission seeks comment on other approaches to improve geo-targeting, including device-based geo-targeting solutions. CSRIC IV recommends that ATIS/TIA conduct feasibility studies of the ability of Participating CMS Providers to more narrowly geo-target WEA using network-based, device-based, and third-party-assisted solutions. Network-based geo-targeting solutions include cell sectorization and algorithm-based transmission site selection. A device-based solution entails an alert originator transmitting geographic coordinates for the target area along with the WEA message, and an end-user device using the device's location-based technology to display only those WEA messages that are relevant to the geographic area in which the device is located. CSRIC IV recommends that ATIS/TIA evaluate the extent to which device-based solutions could be optimized by minimizing the amount of data necessary to transmit alert area coordinates, either by compressing the data, circularizing the polygon, or embedding the geographic data in the alert message itself. A third-party-assisted solution (
34. Could a device-based solution improve WEA geo-targeting without burdening Participating CMS Provider infrastructure? Could device-based solutions complement network-based solutions to facilitate the delivery of even more granular WEA messages? Would the provision of alert area coordinates in a WEA message potentially reduce the amount of data available for other message elements, such as text and multimedia, and if so, what measures could mitigate this possibility? Carnegie Mellon University has “developed a technique which significantly reduces the amount of data required to convey the location, size, and shape of an NWS alert polygon,” suggesting that only a small amount of data may be necessary to transmit alert coordinates to a mobile device. To what extent can the amount of data needed to transmit geographic coordinates be reduced through such optimization methods? Are such methods feasible or advisable? Are there other techniques for efficiently sending alert area coordinates to a device that should be examined? The Commission also seeks comment on whether the use of device-based solutions might implicate privacy issues and on the protective measures that might be necessary to implement before a device's location-based services are used for the provisioning of WEA alerts. Finally, the Commission seeks comment on the extent to which third-party developers are in the process of developing services to improve WEA geo-targeting.
35. The Commission seeks comment on the potential benefits that more accurate geo-targeting may provide. By proposing measures to ensure that WEA messages are more finely targeted and delivered only to recipients who are likely to be affected by the emergency event, the Commission intends to minimize over-alerting and reduce alert fatigue. Do alerts sent to too wide an area result in significant problems? Does or could inaccurate geo-targeting lead to alert fatigue, and, if so, would it cause many individuals to disregard or opt-out of receiving all but the Presidential message? CSRIC IV and START conclude that finer geo-spatial targeting is necessary to ensure WEA Alert Messages only reach those people at risk, and that the “effectiveness of WEA Alert Messages may remain suppressed until they can be distributed to finer geospatial targeted populations so that messages only reach the people who are at risk.” The Commission seeks comment on these findings and encourage commenters to offer statistical evidence of the anticipated benefits resulting from tightening the Commission's geo-targeting requirements. Further, the Commission seeks comment on whether improved geo-targeting technology will increase opportunities for wireless providers to offer beneficial services to the companies currently providing mass notification products to localities, employers, and school systems. Specifically, will improved geo-targeting capabilities expand opportunities for wireless carriers and other parties to contract for services outside of WEA that are beneficial to the alert-originating community? The Commission seeks comment on whether there are other potential public/private partnerships that could further leverage WEA capabilities and bring additional innovative alerting services to communities.
36. Finally, the Commission seeks comment on the potential costs that would result from implementing the more granular geo-targeting requirements the Commission propose today, including through the implementation of network-based, device-based, or third-party-assisted solutions. Would the cost of compliance with the Commission's proposed rules through the use of network-based enhancements likely be minimal because Participating CMS Providers are already engaging in such practices voluntarily? What costs would be entailed for Participating CMS Providers
37. Section 602(f) of the WARN Act provides that “[t]he Commission shall require by regulation technical testing for commercial mobile radio service providers that elect to transmit emergency alerts and for devices and equipment used by such providers for transmitting alerts”. Under the current WEA rules, the Commission requires Participating CMS Providers to support Required Monthly Testing (RMT) initiated by FEMA, and testing of the C-Interface. The Commission adopted these testing requirements in the
38. GAO and alert originators have raised concerns about the lack of a state/local WEA testing regime. In response, the Commission tasked CSRIC IV with making recommendations on how the Commission could address these concerns. In its report, CSRIC IV observes that, according to state and local alert originators, training and proficiency-building exercises constitute a “fundamental component” of emergency management programs. Additionally, according to CSRIC IV, WEA testing would provide state and local alert originators with opportunities to evaluate their preparedness for responding to life-threatening events, to ensure the software used to generate and the infrastructure used to disseminate WEA messages are operating correctly, and to test for downstream issues.
39.
40. Pursuant to CSRIC IV's recommended opt-in testing model, an alert originator would submit its test message to FEMA/IPAWS, which would then send the test message to Participating CMS Providers that have coverage within the described alert area. Participating CMS Providers would then receive and process the test message, distributing it to devices configured to opt-in to receiving state and local WEA tests.
41. The Commission proposes to add a new section 10.350(c) to the WEA rules to require Participating CMS Providers to ensure their systems support the receipt of “State/Local WEA Tests” from the Federal Alert Gateway Administrator, and to distribute such tests to the desired test area in a manner consistent with section 10.450 of the rules. In order to allow State/Local WEA Tests to mirror an actual event, as recommended by the CSRIC, the Commission proposes that the 24-hour delivery window that currently applies to RMTs under section 10.350(a)(2) would not apply to State/Local WEA Tests conducted under proposed section 10.350(c). The Commission believes that the local, geographically focused nature of these tests would allow Participating CMS Providers to distribute the State/Local WEA Tests within their networks upon receipt in a manner consistent with necessary traffic load management and network maintenance. The Commission seeks comment on this analysis. In this regard, the Commission also seeks comment on whether there still remains a justification for the 24-hour window for RMTs. Does the 24-hour window allow for efficient testing that provides adequate data about any weaknesses in the system, including potential message delivery latencies? Do Participating CMS Providers still require a 24-hour window “to manage traffic loads and to accommodate maintenance windows,” as indicated by section 10.350(a)(2)? The Commission further proposes that section 10.350(c), consistent with section 10.350(a), should specify that a Participating CMS Provider may forgo accepting or delivering a State/Local WEA Test if the test message is preempted by actual alert traffic, or if an unforeseen condition in the Participating CMS Provider infrastructure precludes distribution of the State/Local WEA Test. In the event that a Participating CMS Provider cannot accept or deliver a test under these circumstances, the Commission proposes to require that Participating CMS Providers shall indicate such an unforeseen condition by sending a response code to the Federal Alert Gateway. Finally, the Commission proposes that Section 10.350(c) state that Participating CMS Providers may provide their subscribers with the option to opt-in to receiving State/Local WEA Tests. The Commission seeks comment on these proposals. The Commission also seeks comment on whether the Commission should require State/Local WEA Test messages to be clearly identified as test messages to prevent confusion.
42. The Commission seeks comment on whether any new or revised technical standards or processes would be necessary to facilitate state and local testing, and if so, whether such standards would be best developed through industry standards bodies or best practices. The Commission seek further comment on whether alert originators at the federal, state and local levels would be best positioned to coordinate with Participating CMS Providers and determine the proper method of outreach to testing participants. Accordingly, would the goal of promoting alert origination proficiency be best achieved by affording alert originators flexibility to develop a WEA testing model that best fits the needs of their individual
43. The Commission also seeks comment on the periodicity with which state and local alert originators would likely want to engage in readiness testing, and on the maximum readiness testing periodicity Participating CMS Providers are able to support. With what frequency should State/Local WEA Tests be conducted, in order to optimize and ensure system readiness, without introducing alert fatigue or otherwise imposing undue burdens on Participating CMS Providers?
44. The Commission seeks comment on the public safety benefits likely to result from requiring Participating CMS Providers to support State/Local WEA Testing. According to FEMA, a localized, opt-in, end-to-end approach to testing, as described above, offers the public safety benefits that alert originators state that they need. Specifically, FEMA asserts that requiring Participating CMS Provider support for local testing would improve WEA by (1) demonstrating to the public that their handsets are (or are not) capable of receiving a WEA message; (2) demonstrating WEA capability in coordinated public warning exercises and tests such as those required by the Nuclear Regulatory Commission for local emergency preparedness programs; and (3) providing the public with reassurance that local emergency management is capable of alerting them in times of disaster. The Commission seeks comment on FEMA's analysis.
45. Alternatively, would another approach to state and local WEA testing address alert originators' needs more efficiently? As mentioned above, CSRIC IV considered two alternatives to localized, end-to-end, opt-in WEA testing, including local testing on an opt-out basis, and using the current RMT process. The Commission seeks comment on these alternative testing regimes. While CSRIC IV concludes that opt-out testing would afford substantial benefits in terms of system verification, alert originator proficiency, and public awareness, it also finds that opt-out testing is unnecessarily broad, and that large-scale public response may unduly stress emergency call centers. The Commission seeks comment on CSRIC IV's analysis. With respect to utilizing the current RMT process, CSRIC IV finds that this testing model poses little to no network reliability risk for Participating CMS Providers, but also offers little, if any, benefit in the areas of system verification, alert originator proficiency and public awareness because the test alert would not be displayed on end-user devices. The Commission seek comment on CSRIC IV's findings.
46. The Commission also seeks comment on any potential costs that may be imposed by its proposed testing requirements. Because the proposed testing regime is largely based on the current RMT model, with test recipients likely comprised of a limited number of voluntary, opt-in participants, the Commission anticipates that the proposed testing regime would likely not lead to network congestion. The Commission seeks comment on this observation, as well as the extent to which Participating CMS Providers would incur costs, including costs related to the development of any technical standards or necessary modifications to end user devices. Are there any measures the Commission could take to minimize any attendant costs while still achieving the Commission's public safety goals?
47.
48.
49. Section 10.350 of the WEA rules requires Participating CMS Providers to keep an automated log of RMT messages received by the Participating CMS Provider Alert Gateway from the FEMA Alert Gateway. The Commission adopted this requirement in the
50. The Commission proposes to require Participating CMS Provider Alert Gateways to provide the logging functionality recommended by the
• Provide a mechanism to log messages with time stamps that verify when messages are received, and when the messages are acknowledged or rejected by the Participating CMS Provider Alert Gateway, and if an alert is rejected, to provide the specific error code generated by the rejection;
• Maintain an online log of active and cancelled alert messages for 90 days, and maintain archived logs for at least 36 months that should be accessible by Participating CMS Providers for testing and troubleshooting purposes; and
• Generate monthly system and performance statistics reports based on category of alert, alert originator, alert area, and other alerting attributes.
The Commission observes that these logging requirements were recommended by the CMSAAC after extensive efforts to arrive at a consensus among CMS Providers, vendors, public safety entities, organizations representing broadcast stations, and organizations representing people with disabilities and the elderly. Are Participating CMS Provider Alert Gateways currently capable of performing the logging functions specified by the CMSAAC? If not, how difficult would it be to add this functionality? Would alert logging allow Participating CMS Providers to monitor whether the WEA system is working as intended? In order to develop a full view of how the WEA system is working, from alert initiation all the way through to receipt of the message by the mobile device, should CMS Providers also log when the alert is received by a representative, dedicated, end-user device (such as a mobile device controlled by and in the possession of the Participating CMS Provider)? Aside from the Commission, should alert logs be accessible only by Participating CMS Providers? The Commission seeks comment on whether other federal or state governmental entities, such as FEMA, may have a legitimate need for access to alert logs. The Commission seeks comment any confidentiality protections that would be required to protect Participating CMS Provider alert logs. The CMSAAC described message logging as part of the Trust Model necessary to ensure WEA system security and reliability because it allows all WEA messages to be attributed reliably to an individual, sender, and to identify when the sender is not properly credentialed. The Commission also seeks comment on whether implementing these CMSAAC-recommended procedures, along with the test reporting requirements described below, would be beneficial in harmonizing the Commission's proposed WEA test reporting and logging procedures with the Commission's EAS rules.
51. The Commission notes that CSRIC IV recommends that industry and government stakeholders “develop a best practices ATIS/TIA standard for defining and reporting on significant problems.” The Commission seeks comment on CSRIC IV's recommendation. Should the Commission formalize a reporting process for alert originators? If the Commission does formalize a test reporting procedure, what form should that reporting take, and what specific information should be reported? The Commission also seeks comment on the extent to which reporting procedures could provide alert originators with useful feedback on alert delivery latency, accuracy of geo-targeting, and quality of public response that otherwise would be unavailable. Could feedback on the quality of public response be leveraged to improve alert originators' alert origination proficiency? The Commission seeks comment on the extent to which reported data would be useful to empower alert originators with the ability to ensure the WEA system will work as designed and when needed. What, if any, characteristics of alert dissemination, beyond geo-targeting and latency, would state and local alert originators seek to evaluate through State/Local WEA Testing and thus require reports on? How can a test reporting system be optimized to protect potentially confidential information?
52. Should the Commission also require Participating CMS Providers to report WEA test data? The Commission notes that the Commission has required that EAS Participants file nationwide EAS test result data with the Commission on a confidential basis through an Electronic Test Reporting System (ETRS). Should the Commission require Participating CMS Providers to use this system as a model for the reporting of WEA test data to the Commission? If the Commission were to require reporting of WEA test data, the Commission seeks comment regarding the frequency with which such reporting should take place. For example, should Participating CMS Providers file test data on an annual basis, based on test data collected from the RMT process? The Commission also seeks comment regarding the elements of the test data that should be provided in any such report. For example, should the report include data regarding the time of the receipt of the alert from the FEMA Alert Gateway, and the time of alert transmission? Should Participating CMS Providers include data regarding when an alert is received by a representative mobile device, as discussed above with respect to logging requirements? The Commission also seeks comment on whether such information should be considered presumptively confidential, to be shared with federal, state and local alert originators that have confidentiality protection at least equal to that provided by the Freedom of Information Act (FOIA), consistent with the Commission's data-protection practices in the EAS context. Alternatively, are there differences in the type of data that the Commission might collect from CMS Providers versus EAS Participants that would suggest WEA test data should be treated differently? Should access to WEA test data be limited, and if so, to whom? The Commission seeks comment on the optimal method of filing test result data with the Commission in a manner that fulfills the primary goal of WEA testing to provide alert originators with verification that the system works as designed, and provides the Commission with an opportunity to analyze the performance of the WEA system in order to bring to light any potential weaknesses in the WEA system that the Commission may be able to address through rulemaking, public-private partnerships, or both.
53. The Commission also seeks comment on three alternative test reporting mechanisms: Third-party software using Application Programming Interfaces (APIs), informal communication among alert originators, and use of the Public Safety Help Center. The Commission anticipates that these alternatives could minimize the filing burden on Participating CMS Providers, but could also present significant drawbacks. First, the Commission seeks comment on whether Participating CMS Providers could allow third-party application developers to create software and APIs to satisfy their test reporting requirements. Could
54. The Commission also seeks comment on the potential costs that Participating CMS Providers would be likely to incur if the Commission were to adopt rules for alert logging and test reporting. What costs, if any, would logging alerts at the Participating CMS Provider Alert Gateway cause Participating CMS Providers to incur? What costs would reporting test data to the Commission impose? How could the Commission optimize the WEA test reporting process to minimize the filing burden on Participating CMS Providers, and to protect confidential information? How, if at all, could a best-practice-based test reporting system be leveraged to provide comparable benefits at a lower cost?
55. The Commission seeks comment on whether there are additional measures the Commission can take to promote participation in WEA, both by consumers and by CMS Providers. Section 602(b)(2)(E) of the WARN Act provides that “any commercial mobile service licensee electing to transmit emergency alerts may offer subscribers the capability of preventing the subscriber's device from receiving such alerts, or classes of such alerts, other than an alert issued by the President.” In the
56. Section 602(b)(2)(E) of the WARN Act required the Commission to send a report to Congress making recommendations on whether Participating CMS Providers should continue to be permitted to offer their subscribers the ability to opt out of receiving Imminent Threat and AMBER Alerts. As required by the WARN Act, the Commission filed the report on August 5, 2010, but initial deployment of WEA was not scheduled until April 2012. Accordingly, although the Commission adopted opt-out rules in 2008, at the time the Commission submitted its report to Congress there was no WEA service from which customers could opt-out, so the Commission made no recommendations regarding subscriber opt-out capability.
57. Now that WEA has been deployed for over three years, the Commission seek comment on the opt-out provisions currently used by Participating CMS Providers. Further, the Commission seeks comment on specific factors that lead consumers to opt out of receiving WEA messages. For example, do consumers regularly opt out of receiving WEA messages because they receive alerts that are not relevant to their geographic location? If so, would the new geo-targeting rules the Commission proposes today reduce consumer opt-out? Has message length, particularly the 90-character limit, been a factor in consumer decisions to opt out? Would the provision of further details about the nature of life-threatening situations and instructions on how to respond make it more or less likely that consumers would choose to opt out of receiving WEA messages? Similarly, would the availability of WEA messages in languages other than English, Emergency Government Information, embedded URLs, embedded phone numbers or multimedia content have an impact on consumer opt out, and if so, then to what extent?
58. The Commission notes that many Participating CMS Providers supply, display, or refer the customer to instructions on how to opt out of receiving WEA messages on Participating CMS Provider Web sites. Does the manner in which Participating CMS Providers offer their customers information regarding consumer choice have an impact on whether consumers opt out of receiving WEA messages? Would the goals of the statute be better served by requiring a more neutral approach? If so, should the Commission prescribe a consistent, transparent and uniform opt-out procedure for WEA messages, or are there other regulatory responses that would effectively prevent such favoritism while providing Participating CMS Providers with more flexibility in how they inform consumers of the options?
59. The Commission seeks comment on the extent to which Participating CMS Providers can provide consumers with a greater number of opt-out choices that might facilitate consumer participation in WEA. For example, could Participating CMS Providers offer users the option to receive AMBER Alerts only during certain times, such as during the day, so they will not be disturbed during the evening or at night? Are consumers currently able to silence some or all WEA alerts by using “silent mode” or “do not disturb” functions on their mobile devices? Are there other ways to personalize alert receipt options that would help optimize the balance between encouraging WEA participation and providing consumers with sufficient information to make an informed opt out decision? Should the Commission require Participating CMS Providers to offer any of these types of personalized alert receipt options, and, if so, what costs, if any, would such a requirement impose on the Provider? What benefits would be associated with such a requirement? For example, would a greater number of consumers decide not to disassociate completely from WEA if they had a more nuanced range of choices in how they could receive alerts, such as having the option to
60. The Commission seeks comment on the extent that public perception of WEA contributes to consumer opt-out and to CMS Provider election to participate in WEA. To the extent that the rules the Commission proposes today will heighten public awareness and improve public perception of the value of WEA, to what extent is this expected to affect consumer opt out and CMS Provider participation?
61. Finally, the Commission seeks comment on what potential barriers may exist that prevent full participation in WEA by all wireless providers, particularly any barriers confronting smaller providers. What measures could lower any barriers to participation for CMS Providers? Are there particular actions the Commission or other stakeholders could take to facilitate the voluntary participation of non-participating CMS providers, particularly smaller providers, in WEA? For instance, do smaller providers encounter issues obtaining WEA-capable devices?
62. Section 11.45 of the EAS rules provides, in pertinent part, that “[n]o person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.” While the Commission's WEA rules do not include a comparable bar against the use of the WEA Attention Signal, because the WEA and EAS Attention Signals use identical frequencies, absent a waiver of the Commission's rules, the broadcast or transmission of the WEA Attention Signal may violate Section 11.45 of the Commission's rules, particularly insofar as the respective signals may be indistinguishable to the listener.
63. FEMA, in collaboration with Ready.gov and the Ad Council, has developed a public education campaign consisting of PSAs, which it has distributed to strategic local markets and state and local IPAWS partners. In November 2015, the Public Safety and Homeland Security Bureau (PSHSB or Bureau), on delegated authority, temporarily waived sections 11.45 and 10.520 of the Commission's rules, in order to allow FEMA to raise public awareness about WEA and its attention signal through a PSA campaign. The waiver, which will expire on May 19, 2017, permits the PSAs to play the WEA Attention Signal to familiarize the public with the sounds that they may hear from their mobile device when they receive a WEA Alert. The Bureau, however, conditioned the waiver upon the WEA PSA making clear that the WEA Attention Signal was being used “in the context of the PSA and for the purpose of educating the viewing or listening public about the functions of their WEA-capable mobile devices and the WEA program.”
64. The Commission proposes to amend its rules to allow broadcast or transmission of the WEA Attention Signal as part of government-developed PSAs in order to address alert originators' need to raise public awareness about WEA. Specifically, the Commission proposes to amend sections 11.45 and 10.520 to allow federal, state and local governments to use the attention signal common to EAS and WEA to raise public awareness about WEA, provided the relevant entity makes it clear that the WEA Attention Signal is being used in the context of the PSA, “and for the purpose of educating the viewing or listening public about the functions of their WEA-capable mobile devices and the WEA program,” including by explicitly stating that the WEA attention signal is being used in the context of a PSA for the purpose of educating the public about WEA. The Commission also seek comment on whether the Commission should further amend section 10.520 to bar the use of the WEA Attention Signal in a manner parallel to the bar on use of the EAS Attention Signal in Section 11.45 of the Commission's rules. In the context of increasing the maximum WEA character limit, FEMA notes that it will “need to . . . conduct additional public information efforts to inform people of the new format of WEA messages they may receive on their cellular phones.” Would PSAs be useful for this purpose? If the Commission were to amend the Commission's rules to allow the broadcast or transmission of the WEA Attention Signal in PSAs intended to educate the public about WEA, should the Commission limit this exception to PSAs that are developed by FEMA, or should the Commission extend this exception to PSAs created by any alerting authority recognized by FEMA? If the Commission were to extend the exception in this manner, should any such PSAs be subject to prior review or approval by FEMA as a condition of being considered compliant under the Commission's amended rules?
65. The WARN Act and the Commission's rules require Non-commercial Educational (NCE) and public broadcast television station licensees and permittees “to install necessary equipment and technologies on, or as part of, any broadcast television digital signal transmitter to enable the distribution of geographically targeted alerts by commercial mobile service providers that have elected to transmit emergency alerts” as a back-up to the C-Interface.
66. In a companion
67. Against that background, the Commission sought comment on whether NCE/public broadcast television stations should participate in WEA testing, and if so, how this testing should be implemented. The Commission asked whether it should implement similar requirements as those it adopted for Participating CMS Providers. Additionally, the Commission sought comment on whether a different testing regime should be implemented given the unique circumstances of NCE/public broadcast television stations and digital television technology. Only two parties commented in response, both of which noted that, although they supported testing of the NCE/public television portion of the system, there were inherent limits in what such testing would show.
68. Given the passage of time, and the advances in WEA technology that have occurred during that time, the Commission asks that interested parties refresh and update the record on whether and how testing of the broadcast-based WEA infrastructure should be implemented. The Commission also seeks comment on whether NCE/public broadcast television stations have the capability to
69. Additionally, the Commission asks commenters to specify the benefits and costs of adopting NCE/public broadcast television station testing requirements. For example, would the public benefits associated with ensuring the reliability of a redundant, back-up system outweigh the costs to NCE and public broadcast station licensees and permittees in testing equipment? Would an extended implementation timeframe mitigate such costs?
70. Section 10.410 of the Commission's WEA rules requires Participating CMS Providers' Alert Gateways to process alerts on a first in-first out (FIFO) basis, except for Presidential Alerts, which must be processed before all non-Presidential alerts. Section 10.320 reiterates this requirement, and further requires Participating CMS Provider's Alert Gateways to support “a mechanism to manage congestion within the CMS provider's infrastructure.” Further, in the
71. Given the passage of time, and the advances in WEA technology that have occurred during that time, the Commission seeks comment on whether it should amend section 10.320 of the Commission's rules to address prioritization at the Alert Gateway, in transit, and on the mobile device. Specifically, with respect to prioritization at the Alert Gateway, the Commission seeks comment on whether WEA alerts should continue to be processed on a FIFO basis, with the exception of the Presidential Alert? Should Imminent Threat Alerts attaining a certain threshold level of urgency, severity and certainty be processed before other, less extreme Imminent Threats potentially affecting the same geographic area? In the event commenters believe a particular type of alert should be prioritized over another, the Commission seeks comment on the order of prioritization and basis for such prioritization. With respect to the prioritization of WEA alerts in transit, should the Commission require that WEA alert data have priority over all other data in transit? Would this have any unintended practical consequences, given that all traffic is increasingly data?
72. The Commission's WEA rules allow Participating CMS Providers to elect to transmit WEA alert messages “in a manner consistent with the technical standards, protocols, procedures, and other technical requirements implemented by the Commission.” The WEA rules also allow Participating CMS Providers to withdraw their election to participate in WEA “without regulatory penalty or forfeiture.” The Commission adopted these rules based on the WARN Act's requirements that CMS providers that elect to transmit emergency alerts must agree to follow the technical rules adopted by the Commission, and the WARN Act's provision that Participating CMS Providers may withdraw their election to transmit emergency alerts at any time without penalty upon written notification to subscribers. CSRIC IV recommends that the Commission modify these election procedures to provide CMS Providers with multiple election options. Under CSRIC IV's recommendations, a CMS Provider could elect to continue to participate in WEA under the new rules adopted by the Commission, or “under the rules in place at the time of the original election.” CSRIC IV recommends that CMS Providers should be required to electronically file with the Commission, within 180 days following the adoption of changes or enhancements to WEA rules, a letter attesting to the CMS Provider's election as recommended above.
73. The Commission believes that Participating CMS Providers should continue to provide WEA service in a manner consistent with the Commission's WEA rules, including any amendments the Commission might adopt as a result of this proceeding. Under the WARN Act, CMS Provider election to participate in WEA is voluntary, but once a CMS provider elects to participate in WEA, participation must be consistent with the Commission's rules. The WARN Act plainly states that a CMS Provider that elects to transmit alerts under the WARN Act must do so “in a manner consistent with the technical standards, protocols, procedures, and other technical requirements implemented by the Commission.” There is nothing in the WARN Act that gives a Participating CMS Provider the authority to select which technical standards, protocols, procedures and other requirements with which it will comply. The Commission observes that to allow each Participating CMS Provider to support a substantively or technically different WEA service could introduce confusion and potentially impede interoperability, unnecessarily complicating the task of alert originators at the very instant when lives may depend on getting an accurate and timely alert to the community. Moreover, if the Commission were to adopt CSRIC IV's recommended revisions to the Commission's election procedures, it would threaten to eliminate or severely inhibit the Commission's ability to implement the WARN Act's vision that the WEA service should evolve, consistent with advancements in the underlying technology.
74. The Commission believes that the record and stakeholder practice support the Commission's position that the Commission should revisit its technical rules for WEA as technology evolves in order to ensure that WEA remains an effective, life-saving service. It was the common understanding among all the CMSAAC stakeholders that WEA would evolve with technology. Indeed, many of the proposals in this
75. In light of the rapid deployment of smart handsets and 4G technology as discussed above, the Commission believes that the statutory provisions
76. As discussed below, the Commission proposes that Participating CMS Providers must comply with the Commission's WEA messaging rules within one year of their effective date, and with the Commission's WEA geo-targeting and testing rules within sixty days of their effective date. While all of the Commission's proposed rules are intended to leverage commercially available technologies to improve public safety at minimal cost to Participating CMS Providers, the Commission recognizes that compliance with the Commission's WEA messaging rules, unlike the Commission's WEA testing and geo-targeting rules, would likely require modifications to existing network and device standards in order to ensure that Participating CMS Providers are able to comply with these proposed rules in a uniform manner.
77. CSRIC IV recommends that “within 180 days of the FCC adoption of rules for WEA enhancements, the FCC, Participating CMS [P]roviders, FEMA, and Alert Originators jointly identify the timelines for enhanced WEA development, testing and deployment,” taking into consideration ATIS/TIA feasibility studies scheduled to be completed within one year. In response to this CSRIC IV recommendation, and for ease of reference and comment, the Commission provides the table below to set forth the timeframes for those instances where the Commission proposes specific implementation deadlines.
78.
79.
80. The Commission further proposes that Participating CMS Providers should comply with WEA alert logging and test reporting requirements within sixty days of the adoption of final State/Local WEA Testing and proficiency training rules, or within sixty days of the launch of ETRS, whichever is later. The Commission notes that the Commission required EAS Participants to file test report data in ETRS within sixty days of the effective date of the ETRS rules, or within sixty days of the launch of the ETRS, whichever was later. The Commission anticipates that filing test result data in ETRS will present
81.
82.
83. The proceeding this
84. 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 in response to this
Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS:
Paper Filers: Parties that choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
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.
1. 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
2. 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.
3. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.
People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to
85. As required by the Regulatory Flexibility Act of 1980,
86. This document contains proposed new and modified 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 (OMB) to comment on the information collection requirements contained in this
1. For further information regarding the Notice of Proposed Rulemaking contact James Wiley, Attorney Advisor, Policy and Licensing Division, Public Safety and Homeland Security Bureau, at (202) 418-1678 or
2. Accordingly,
3.
Communications common carriers, Radio, Emergency alerting.
Radio, Television, Emergency alerting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 10 and 47 CFR part 11 to read as follows:
47 U.S.C. 151, 154(i) and (o), 201, 303(r), 403, and 606, as well as sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN Act.
(a) CMS providers may provide their subscribers with the option to opt out of the “Child Abduction Emergency/AMBER Alert,” “Imminent Threat Alert” and/or “Emergency Government Information” classes of Alert Messages.
(g)
(1) Provide a mechanism to log messages with time stamps that verify when messages are received, and when the messages are acknowledged or rejected by the Participating CMS Provider Alert Gateway, and if an alert is rejected, to provide the specific error code generated by the rejection;
(2) Maintain an online log of active and cancelled alert messages for 90 days, and maintain archived logs for at least 36 months that should be accessible by Participating CMS Providers for testing and troubleshooting purposes; and
(3) Generate monthly system and performance statistics reports based on category of alert, alert originator, alert area, and other alerting attributes?
(c)
(1) A Participating CMS Provider's Gateway shall support the ability to receive a State/Local WEA Test message initiated by the Federal Alert Gateway Administrator.
(2) A Participating CMS Provider shall distribute a State/Local WEA Test to the geographic area specified by the alert originator pursuant to the geographic targeting standard established by § 10.450 of this chapter.
(3) A Participating CMS Provider may forego a State/Local WEA Test if the State/Local WEA Test is pre-empted by actual alert traffic or if an unforeseen condition in the CMS Provider infrastructure precludes distribution of the State/Local WEA Test. A Participating CMS Provider Gateway shall indicate such an unforeseen condition by a response code to the Federal Alert Gateway.
(4) CMS Providers may provide their subscribers with the option to opt in to receive State/Local WEA Tests.
A Participating CMS Provider is required to receive and transmit four classes of Alert Messages: Presidential Alert; Imminent Threat Alert; Child Abduction Emergency/AMBER Alert; and Emergency Government Information.
(d)
A Participating CMS Provider must support WEA Alert Messages containing at least 90 characters of alphanumeric text. If, however, it is technically feasible for a Participating CMS Provider to support a WEA Alert Message of up to 360 characters of alphanumeric text, a Participating CMS Provider must transmit such an Alert Message.
This section establishes minimum requirements for the geographic targeting of Alert Messages. A Participating CMS Provider will determine which of its network facilities, elements, and locations will be used to geographically target Alert Messages. A Participating CMS Provider must transmit any alert message that is specified by a geocode, circle, or polygon to a target area not larger than the specified geocode, circle, or polygon. If, however, the Participating CMS Provider cannot broadcast the alert to an area that accurately matches the target area, a Participating CMS Provider may transmit an Alert Message to an area that closely approximates the target area, but in any case not exceeding the propagation area of a single transmission site.
(d) The audio attention signal must be restricted to use for Alert Messages under part 10, except as used for federal Public Service Announcements (PSAs) designed to raise public awareness about emergency alerting, provided that the federal agency presents the PSA in a non-misleading manner, including by explicitly stating that the emergency alerting attention signal is being used in the context of a PSA for the purpose of educating the viewing or listening public about emergency alerting.
47 U.S.C. 151, 154 (i) and (o), 303(r), 544(g) and 606.
No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS, or as specified in § 10.520(d).
Surface Transportation Board, DOT.
Advance notice of proposed rulemaking.
The Surface Transportation Board seeks comment on whether and how it should update its rules pertaining to offers of financial assistance in order to improve that process and protect it against abuse.
Comments are due by February 12, 2016. Reply comments are due by March 14, 2016.
Comments and replies may be submitted either via the Board's e-filing format or in paper format. Any person using e-filing should attach a document and otherwise comply with the instructions found on the Board's Web site at “
Jonathon Binet, (202) 245-0368. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]
In the ICC Termination Act of 1995, Public Law 104-88, 109 Stat. 803 (1995) (ICCTA), Congress revised the process for filing offers of financial assistance (OFAs) for continued rail service, codified at 49 U.S.C. 10904. Under the OFA process, as further implemented in the Board's regulations at 49 CFR 1152.27, financially responsible parties may offer to temporarily subsidize continued rail service over a line on which a carrier seeks to abandon or discontinue service, or offer to purchase a line and provide continued rail service on a line that a carrier seeks to abandon.
Upon request, the abandoning or discontinuing carrier must provide certain information required under 49 U.S.C. 10904(b) and 49 CFR 1152.27(a) to a party that is considering making an OFA. A party that decides to make an OFA (the offeror) must submit the OFA to the Board, including the information specified in 49 CFR 1152.27(c)(1)(ii). If the Board determines that the OFA is made by a financially responsible offeror, the abandonment or discontinuance authority is postponed to allow the parties to negotiate a sale or subsidy arrangement. 49 U.S.C. 10904(d)(2); 49 CFR 1152.27(e). If the parties cannot agree to the terms of a sale or subsidy, they may request that the Board set binding terms under 49 U.S.C. 10904(f)(1). After the Board has set the terms, the offeror can accept the terms or withdraw the OFA. When the operation of a line is subsidized to prevent abandonment or discontinuance of service, it may only be subsidized for up to one year, unless the parties mutually agree otherwise. 49 U.S.C. 10904(f)(4)(b). When a line is purchased pursuant to an OFA, the buyer must provide common carrier service over the line for a minimum of two years and may not resell the line for five years after the purchase. 49 U.S.C. 10904(f)(4)(A); 49 CFR 1152.27(i)(2).
Since the changes to the OFA process in ICCTA were enacted, the Board's experiences have shown that there are areas where clarifications and revisions could enhance the OFA process and protect it against abuse. Therefore, the Board seeks public comments on whether and how to improve any aspect of the OFA process, including enhancing its transparency and ensuring that it is invoked only to further its statutory purpose of preserving lines for rail service. Although we invite public comment on ways to improve any aspect of the OFA process, we also specifically seek comments on the following possible changes to the Board's OFA regulations.
The Board's regulations require that a potential offeror demonstrate that it is “financially responsible,” but those regulations do not fully define this concept or what facts or evidence a party must provide to demonstrate financial responsibility. The Board has made various rulings on this question in specific proceedings, but those rulings are not codified in our regulations, which has led to disputes in some proceedings.
• What documentation should a potential offeror be required to submit to show financial responsibility?
• Should the Board require that potential offerors file notices of intent to file an OFA in abandonment and
• Should the Board require potential offerors to make a financial responsibility showing before requiring carriers to provide financial information to those offerors?
• Should the definition of financial responsibility include the ability, based on the price reflected in an offer of financial assistance, to purchase and operate for at least two years a line being abandoned or to subsidize for one year service being abandoned or discontinued?
• Should the Board alter the process for carriers to provide required financial information to potential offerors, and if so, how?
• Should the Board require potential offerors to make an “earnest money” payment or escrow payment, or to obtain a bond? Key considerations include: Whether the payment or bond amount would be a fixed figure or established on a case by case basis; what method would be used in calculating or fixing the amount; when in the process an offeror would need to make a payment or obtain a bond; and whether (and under what circumstances) a waiver of such a requirement would be appropriate.
• Should the Board prohibit OFA filings by individuals or entities that have abused the Board's processes or engaged in other deceitful or abusive behavior before the Board, and if so, what standards should the Board establish in making a prohibition determination?
The Board has also adjudicated cases in which there has been controversy as to whether a party seeking to subsidize or acquire a line through the OFA process is doing so based on a genuine interest in and ability to preserve the line for rail service.
• Should the Board require that an offeror address whether there is a commercial need for rail service as demonstrated by support from shippers or receivers on the line or through other evidence of immediate and significant commercial need; whether there is community support for rail service; and whether rail service is operationally feasible?
• Should the Board establish criteria and deadlines for carriers that want to file requests for exemptions from the OFA process?
Another issue the Board has encountered in OFA proceedings is confusion over the identity of the potential offeror.
• Should the Board require multiple parties intending to submit a joint OFA to do so through a single legal entity, such as a corporation or partnership, to facilitate the financial responsibility determination and to clarify the party acquiring the common carrier obligation?
• Should the Board require an individual filing an OFA to provide his or her personal address?
• Should the Board require a private legal entity filing an OFA to provide the offeror's exact legal name, the state under whose laws it is organized, and the address of its principal place of business?
Because this is an Advanced Notice of Proposed Rulemaking, the Board may not act on each item listed above, but we seek the public's comment on these ideas, including how they could best be implemented, if appropriate. Parties are encouraged to be specific in commenting on these possible changes and in presenting ideas for other possible changes to the OFA process.
The requirements of section 603 of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, (RFA) do not apply to this action because, at this stage, it is an ANPRM and not a “rule” as defined in section 601 of the RFA. Under the RFA, however, the Board must consider whether a proposed rule would have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. If adoption of any rule likely to result from this ANPRM could have a significant economic impact on a small entity within the meaning of the RFA, commenters should submit as part of their comments an explanation of how the business or organization falls within the definition of a small entity, and how and to what extent the commenter's business or organization could be affected. Following review of the comments received in response to this ANPRM, if the Board promulgates a notice of proposed rulemaking regarding this matter, it will conduct the requisite analysis under the RFA.
1. Initial comments are due by February 12, 2016.
2. Reply comments are due by March 14, 2016.
3. This decision is effective on its date of service.
By the Board, Chairman Elliott, Vice Chairman Begeman, and Commissioner Miller.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Advance notice of proposed rulemaking (ANPR); request for comments.
This document announces a control date that may limit or restrict access to the blueline tilefish fishery in Federal waters north of the Virginia/North Carolina border. This action is
December 14, 2015, is established as the “control date” for the blueline tilefish fishery, and may be used as a reference date for future management measures related to the blueline tilefish fishery in Federal waters north of the Virginia/North Carolina border, consistent with applicable Federal laws and the Mid-Atlantic Fishery Management Council's recommendations. Written comments must be received on or before February 12, 2016.
You may submit comments on this document, identified by NOAA-NMFS-2015-0139 by any of the following methods:
Douglas Potts, Fishery Policy Analyst, NMFS, 978-281-9341, or Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, 302-526-5255.
The fishery for blueline tilefish (
In 2014, new restrictions on harvest in the South Atlantic led to a rapid, 20-fold increase in unregulated landings of blueline tilefish caught north of the Virginia/North Carolina border. This spike in landings prompted the Mid-Atlantic Fishery Management Council to request that we take emergency action to prevent long-term harm to the stock. On June 4, 2015, we published an emergency rule (80 FR 31864) to temporarily restrict harvest of this species in the Mid-Atlantic. Subsequently, the Mid-Atlantic Council initiated an amendment to the Golden Tilefish FMP to establish management measures for blueline tilefish within its jurisdiction with the intention of having new management measures in place before NMFS's emergency rule authority would expire. This would avoid a return to an unregulated fishery.
Due to the limited time to implement new management measures, the Mid-Atlantic Council is not considering a limited access program in the current FMP amendment under development. However, the Mid-Atlantic Council has expressed interest in potentially developing such a program in a future action. At its October 2015 meeting, the Mid-Atlantic Council voted to request that we publish a control date in the
Therefore, this notification establishes December 14, 2015, as a control date for potential use in determining historical or traditional participation for the commercial and for-hire recreational sectors of the blueline tilefish fishery. Establishing a control date does not commit us or the Council to develop any particular management program or criteria for participation in this fishery. We may choose a different control date or may choose a management program that does not make use of such a date. We may also choose to take no further action to control entry or access to the blueline tilefish fishery. Any future action we take will be pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, will be discussed at Council meetings, and will have additional Federal rulemaking, including opportunity for public comment.
This notification gives the public notice that interested commercial and for-hire blueline tilefish fishery participants should locate and preserve records that substantiate and verify their participation in the fishery, such as: Dealer purchase slips for commercial fishing trips; Fishing Vessel Trip Reports for both commercial and party/charter vessels; or any other relevant documents. There is no precedent in the Greater Atlantic Region for a limited access program that applies to party/charter or private recreational vessels. In light of the novelty of this aspect of the Council's control date request, we encourage the public to comment on whether limited access for party/charter and private recreational anglers is needed in the blueline tilefish fishery, and, if so, what sort of qualification criteria might be considered by the Council. This notification and control date do not impose any legal obligations, requirements, or expectation.
16 U.S.C. 1801
Rural Business-Cooperative Service, USDA.
Notice.
This notice helps to improve applicants' awareness of the Guarantee Fee Rates for Guaranteed Loans for Fiscal Year (FY) 2016; Maximum Portion of Guarantee Authority Available for FY 2016; Annual Renewal Fee for FY 2016 when applying for guaranteed loans under the Business and Industry (B&I) program.
The Agency was authorized by the 2012 Appropriations Bill, and subsequent Appropriations Acts, to charge a maximum of 3 percent for its guarantee fee for FY 2012, 2013, 2014 and 2015. The guarantee fee for FY 2016 will be 3 percent.
The Agency has established that not more than 12 percent of the Agency's quarterly apportioned B&I guarantee authority will be reserved for loan requests with a reduced fee, and not more than 15 percent of the Agency's quarterly apportioned guarantee authority will be reserved for guaranteed loan requests with a guarantee percentage exceeding 80 percent. Once the respective quarterly limits are reached, all additional loans for that quarter will be at the standard fee and guarantee limits.
The Agency is establishing the renewal fee rate at one-half of 1 percent for the B&I Guaranteed Loan Program. This rate will apply to all loans obligated in FY 2016 that are made under the B&I program.
Nichelle Daniels, USDA, Rural Development, Business Programs, Business and Industry Division, STOP 3224, 1400 Independence Avenue SW., Washington, DC 20250-3224, telephone (202) 720-0786, email
As set forth in 7 CFR 4279.107, the Agency has the authority to charge an initial guarantee fee and an annual renewal fee for loans made under the B&I Guaranteed Loan Program. Pursuant to that authority, the Agency is establishing the renewal fee rate at one-half of 1 percent for the B&I Guaranteed Loan Program. This rate will apply to all loans obligated in FY 2016 that are made under the B&I program. As established in 7 CFR 4279.107(b)(1), the amount of the fee on each guaranteed loan will be determined by multiplying the fee rate by the outstanding principal loan balance as of December 31, multiplied by the percent of guarantee.
The Agency was authorized by the 2012 Appropriations Bill, and subsequent Appropriation Acts, to charge a maximum of 3 percent for its guarantee fee for FY 2012, 2013, 2014 and 2015. It is the Agency's expectation that the 2016 Appropriations Act will contain a provision to charge a maximum of 3 percent for its guarantee fee for FY 2016. As such, the guarantee fee for FY 2016 will be 3 percent.
As set forth in 7 CFR 4279.107(a) and 4279.119(b)(4), each fiscal year, the Agency shall establish a limit on the maximum portion of B&I guarantee authority available for that FY that may be used to guarantee loans with a reduced guarantee fee or guaranteed loans with a guarantee percentage exceeding 80 percent.
Allowing a reduced guarantee fee or exceeding the 80 percent guarantee on certain B&I guaranteed loans that meet the conditions set forth in 7 CFR 4279.107 and 4279.119 will increase the Agency's ability to focus guarantee assistance on projects that the Agency has found particularly meritorious. For reduced guarantee fees, the borrower's business must support value-added agriculture and result in farmers benefiting financially or must be a high impact business development investment as defined in 7 CFR 4279.155(b)(5) and be located in rural communities that experience long-term population decline and job deterioration, remain persistently poor, are experiencing trauma as a result of natural disaster, or are experiencing fundamental structural changes in its economic base.
The Agency has established that not more than 12 percent of the Agency's quarterly apportioned B&I guarantee authority will be reserved for loan requests with a reduced fee, and not more than 15 percent of the Agency's quarterly apportioned guarantee authority will be reserved for guaranteed loan requests with a guarantee percentage exceeding 80 percent. Once the respective quarterly limits are reached, all additional loans for that quarter will be at the standard fee and guarantee limits.
This action has been reviewed and determined not to be a rule or regulation as defined in Executive Order 12866, as amended by Executive Order 13258.
Rural Business-Cooperative Service, USDA.
Notice.
The Rural Business-Cooperative Service (Agency) published a notice in the
For information about this Notice, please contact Kelley Oehler, USDA Rural Development, Energy Division, 1400 Independence Avenue SW., Stop 3225, Room 6870, Washington, DC 20250. Telephone: (202) 720-6819. Email:
The October 6, 2015, Notice identified on page 60353, in the third column toward the bottom of the page, under Section V. Application Review Information, subsection A. Evaluation Criteria, paragraph (1)(a) indicates an “and” between the words “unserved” and “under-served populations”, and an “and” between subparagraphs (i) and (ii), as well as between subparagraphs (i) and (ii) of paragraph (1)(b), which is on page 60354 on the top of the first column. The “and” is being replaced with “or” in each of these locations to indicate the State Director and Administrator can award points if only one of the criterion is met.
Further, on page 60354 of the Notice, under paragraph (1)(b)(i), which is on the top of the first column, the following language is inserted after the phrase “living in poverty.” The period is replaced with a comma and the phrase is being added “a project is located in a community (village, town, city, or Census Designated Place) with median household income of 60 percent or less of the state's non-metropolitan median household income.”
The changes are being made to ensure REAP maintains consistency with other Agency programs on how poverty areas are defined for State Director and Administrator points and to not restrict points from being awarded if only one criteria is met.
The following Summary of Changes apply to the October 6, 2015, Notice.
1. In the third column on page 60353, Section V. Application Review Information, subsection A. Evaluation Criteria, paragraph (1)(a), the sentence is revised to read as follows:
With regard to 7 CFR 4280.120(g)(3), which addresses applicants who are members of unserved or under-served populations, a project that is:
2. In the third column on page 60353, Section V. Application Review Information, subsection A. Evaluation Criteria, paragraph (1)(a)(i), the last sentence is revised to read as follows:
In order to receive points, applicants must provide a statement in their applications to indicate that owners of the project have veteran status; or
3. In the first column on page 60354, paragraph (1)(b)(i)is revised to read as follows:
(i) Located in rural areas with the lowest incomes where, according to the most recent 5-year American Community Survey data by the U.S. Census Bureau, tracts show that at least 20 percent of the population is living in poverty or a project is located in a community (village, town, city, or Census Designated Place) with a median household income of 60 percent or less of the State's non-metropolitan median household income. This will support the Secretary of Agriculture's priority of providing 20 percent of its funding by 2016 to these areas of need; or
The U.S. Department of Agriculture (USDA) prohibits discrimination against its customers, employees, and applicants for employment on the basis of race, color, national origin, age, disability, sex, gender identity, religion, reprisal and where applicable, political beliefs, marital status, familial or parental status, religion, sexual orientation, or all or part of an individual's income is derived from any public assistance program, or protected genetic information in employment or in any program or activity conducted or funded by the Department. (Not all prohibited bases will apply to all programs and/or employment activities.)
If you wish to file a Civil Rights program complaint of discrimination, complete the USDA Program Discrimination Complaint Form (PDF), found online at
Individuals who are deaf, hard of hearing, or have speech disabilities and wish to file either an Equal Employment Opportunity or program complaint, please contact USDA through the Federal Relay Service at (800) 877-8339 or (800) 845-6136 (in Spanish).
Persons with disabilities who wish to file a program complaint, please see information above on how to contact us directly by mail or email. If you require alternative means of communication for program information (
Architectural and Transportation Barriers Compliance Board.
Notice of meetings.
The Architectural and Transportation Barriers Compliance Board (Access Board) plans to hold its regular committee and Board meetings in Washington, DC, Tuesday and Wednesday, January 12-13, 2016 at the times and location listed below.
The schedule of events is as follows:
Meetings will be held at the Access Board Conference Room, 1331 F Street NW., Suite 800, Washington, DC 20004.
For further information regarding the meetings, please contact David Capozzi, Executive Director, (202) 272-0010 (voice); (202) 272-0054 (TTY).
At the Board meeting scheduled on the afternoon of Wednesday, January 13, 2016, the Access Board will consider the following agenda items:
Members of the public can provide comments either in-person or over the telephone during the final 15 minutes of the Board meeting on Wednesday, January 13, 2016. Any individual interested in providing comment is asked to pre-register by sending an email to
All meetings are accessible to persons with disabilities. An assistive listening system, Communication Access Realtime Translation (CART), and sign language interpreters will be available at the Board meeting and committee meetings.
Persons attending Board meetings are requested to refrain from using perfume, cologne, and other fragrances for the comfort of other participants (see
You may view the Wednesday, January 13, 2016 meeting through a live webcast from 1:30 p.m. to 3:00 p.m. at:
Wednesday, December 16, 2015, 9:15 a.m.-11:30 a.m. EST.
Cohen Building, Room 3321, 330 Independence Ave. SW., Washington, DC 20237.
Notice of Meeting of the Broadcasting Board of Governors.
The Broadcasting Board of Governors (Board) will be meeting at the time and location listed above. The Board will vote on a consent agenda consisting of the minutes of its Oct. 8, 2015 meeting, a resolution honoring the 55th anniversary of Voice of America's (VOA) French-to-Africa Service, a resolution honoring the 55th anniversary of VOA's Spanish Service, a resolution honoring first anniversary of Current Time—the joint production of VOA and Radio Free Europe/Radio Liberty, and a resolution honoring Carlos Garcia-Perez. The Board will receive a report from the Chief Executive Officer and Director of BBG. The Board will also receive a review of Radio Free Asia.
This meeting will be available for public observation via streamed webcast, both live and on-demand, on the agency's public Web site at
The public may also attend this meeting in person at the address listed above as seating capacity permits. Members of the public seeking to attend the meeting in person must register at
Persons interested in obtaining more information should contact Oanh Tran at (202) 203-4545.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On November 3, 2015, the United States Court of International Trade (Court) sustained the Department of Commerce's (the Department)
Michael A. Romani or Minoo Hatten, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone (202) 482-0198 or (202) 482-1690, respectively.
On June 26, 2014, the Court issued the
In its decision in
Because there is now a final court decision, the Department is amending the
Pursuant to sections 735(c)(2) of the Act, “the investigation shall be terminated upon publication of that negative determination” and the Department shall “terminate the suspension of liquidation” and “release any bond or other security, and refund any cash deposit.”
Producer: Precision Fasteners LLC
Exporter: Precision Fasteners LLC
Accordingly, the Department will direct U.S. Customs and Border Protection (CBP) to release any bonds or other security and refund cash deposits. This exclusion does not apply to merchandise produced by Precision Fasteners and exported by any other company. Therefore, resellers of merchandise produced, or produced and exported by Precision Fasteners are not entitled to the exclusion. Similarly, the exclusion does not apply to merchandise produced by any other company and exported by Precision Fasteners.
We note, however, that pursuant to
Lastly, we note that at this time, the Department remains enjoined by Court order from liquidating entries produced and/or exported by Precision Fasteners during the period 11/03/2011 through 4/30/2013 with the exception of the gap period 05/02/2012 through 05/07/2012. These entries will remain enjoined pursuant to the terms of the injunction during the pendency of any appeals process.
Dubai Wire was a mandatory respondent in completed administrative reviews subsequent to the LTFV investigation and therefore the Dubai Wire LTFV redetermination weighted-average dumping margin is superseded by the cash deposit rate currently in effect for Dubai Wire.
This notice is issued and published in accordance with sections 516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.
International Trade Administration, U.S. Department of Commerce.
Notice of an open meeting.
The Renewable Energy and Energy Efficiency Advisory Committee (RE&EEAC) will hold a meeting on Tuesday, February 2, 2016 at the U.S. Department of Commerce Herbert C. Hoover Building in Washington, DC. The meeting is open to the public and interested parties are requested to contact the U.S. Department of Commerce in advance of the meeting.
February 2, 2016, from approximately 8:30 a.m. to 4 p.m. Eastern Standard Time (EST). Members of the public wishing to participate must notify Victoria Gunderson at the contact information below by 5:00 p.m. DST on Friday, January 29, 2016, in order to pre-register.
Victoria Gunderson, Office of Energy and Environmental Industries (OEEI), International Trade Administration, U.S. Department of Commerce at (202) 482-7890; email:
During the February 2nd meeting of the RE&EEAC, committee members will discuss priority issues identified in advance by the Committee Chair and Sub-Committee leadership, hear from Department of Commerce officials and interagency partners on major issues impacting the competitiveness of the U.S. renewable energy and energy efficiency industries, and submit recommendations to the Department of Commerce intended to address these issues.
A limited amount of time before the close of the meeting will be available for pertinent oral comments from members of the public attending the meeting. To accommodate as many speakers as possible, the time for public comments will be limited to two to five minutes per person (depending on number of public participants). Individuals wishing to reserve additional speaking time during the meeting must contact Ms. Gunderson and submit a brief statement of the general nature of the comments, as well as the name and address of the proposed participant by 5:00 p.m. EST on Friday, January 22, 2016. If the number of registrants requesting to make statements is greater than can be reasonably accommodated during the meeting, the International Trade Administration may conduct a lottery to determine the speakers. Speakers are requested to submit a copy of their oral comments by email to Ms. Gunderson for distribution to the participants in advance of the meeting.
Any member of the public may submit pertinent written comments concerning the RE&EEAC's affairs at any time before or after the meeting. Comments may be submitted to the Renewable Energy and Energy Efficiency Advisory Committee, c/o: Victoria Gunderson, Office of Energy and Environmental Industries, U.S. Department of Commerce; 1401 Constitution Avenue NW.; Mail Stop: 4053; Washington, DC 20230. To be considered during the meeting, written comments must be received no later than 5:00 p.m. DST on Friday, January 22, 2016, to ensure transmission to the Committee prior to the meeting. Comments received after that date will be distributed to the members but may not be considered at the meeting.
Copies of RE&EEAC meeting minutes will be available within 30 days following the meeting.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) has completed its administrative review of the countervailing duty (CVD) order on citric acid and certain citrate sales from the People's Republic of China (PRC) for the period January 1, 2013, through December 31, 2013. On June 8, 2015, the Department published in the
We gave interested parties an opportunity to comment on the
Elizabeth Eastwood, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone (202) 482-3874.
On June 8, 2015, the Department published in the
On July 22, 2015, we received case briefs from the Government of China (GOC) and Taihe. On July 27, 2015, we received a rebuttal brief from the petitioners.
On August 13, 2015, we postponed the final results by 60 days, until December 7, 2015.
The merchandise subject to the order is citric acid and certain citrate salts. The product is currently classified under the Harmonized Tariff Schedule of the United States (HTSUS) item numbers 2918.14.0000, 2918.15.1000, 2918.15.5000, 3824.90.9290, and 3824.90.9290. Although the HTSUS numbers are provided for convenience and customs purposes, the written product description remains dispositive.
A full description of the scope of the order is contained in the memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Enforcement and Compliance, entitled, “Issues and Decision Memorandum for the Final Results of the Countervailing Duty Administrative Review: Citric Acid and Certain Citrate Salts; 2013” (Issues and Decision Memorandum), dated concurrently with and hereby adopted by this notice.
All issues raised in the case briefs are addressed in the Issues and Decision Memorandum. A list of the issues raised is attached to this notice as an Appendix. The Issues and Decision Memorandum is a public document and
The Department conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we determine that there is a subsidy (
In making our findings, we relied, in part, on the facts otherwise available. Further, because the GOC did not act to the best of its ability to respond to the Department's requests for information, we drew an adverse inference in selecting from among the facts available, pursuant to sections 776(a) and (b) of the Act.
In accordance with 19 CFR 351.221(b)(5), we determine a net countervailable subsidy rate of 30.93 percent
The Department intends to issue appropriate assessment instructions directly to U.S. Customs and Border Protection (CBP) 15 days after the date of publication of these final results, to liquidate shipments of subject merchandise by Taihe entered, or withdrawn from warehouse, for consumption on or after January 1, 2013, through December 31, 2013.
The Department also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amount shown above on shipments of subject merchandise by Taihe entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed companies, we will instruct CBP to continue to collect cash deposits of estimated countervailing duties at the most recent company-specific or country-wide rate applicable to the company. Accordingly, the cash deposit rates that will be applied to companies covered by this order, but not examined in this review, are those established in the most recently-completed segment of the proceeding for each company. These cash deposit requirements, when imposed, shall remain in effect until further notice.
This notice serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Notice.
With this notice, the U.S. Department of Commerce (USDOC), on behalf of the Administration, is seeking public input to identify priority sectors in which the United States and India will pursue cooperative dialogues under the U.S.-India Strategic and Commercial Dialogue (S&CD) to address standards-related trade barriers. The aim of the cooperative dialogues is for the private sector to produce concrete recommendations for the U.S. and Indian governments on breaking down barriers related to standards, regulatory, and conformity assessment practices to increase bilateral trade. Stakeholder input will be used by the USDOC, in consultation with its interagency partners, to identify those sectors where cooperative work will yield the most benefits for bilateral trade from a U.S. perspective. The USDOC will also use stakeholder input to seek agreement from its Indian government counterparts on the sectors in which to begin cooperative work.
Criteria for selection include: The nature of the existing standards-related barriers in the sector (medical devices, ICT products, oil and gas, etc.), including whether the standards related measures that are affecting bilateral trade are subject to regulatory discretion or have limited potential for adjustment due to legislated mandates; the relative
In order for a sector to be considered, stakeholder input must identify private-sector leaders from the United States and India that have mutually agreed to coordinate and lead a cooperative dialogue among stakeholders in the sector from both the United States and India to develop recommendations for the U.S. and Indian governments on breaking down standards-related barriers in their sector. Confirmation of such agreement is encouraged. See additional requirements for submissions in the contents below.
The private sector cooperative dialogue leaders from the selected priority sectors are expected to begin work as early as possible in 2016 and to report their preliminary recommendations to the U.S. and Indian governments at the next meeting of the U.S.-India S&CD, expected to take place in India in mid-2016. At the discretion of the U.S. and Indian private sector cooperative dialogue leads, U.S. and Indian government officials will be available to provide information to facilitate the development of private sector recommendations. Selection of future priority sectors will be evaluated on the basis of the performance of the cooperative dialogues in the initially selected priority sectors.
Michael Boyles, Manager, Emerging Issues, Office of Standards and Investment Policy, International Trade Administration, by telephone at (202) 482-1935 (this is not a toll-free number) or email at
In January 2015, President Obama and Prime Minister Modi decided to elevate the bilateral commercial and economic partnership by establishing the first-ever U.S.-India Strategic and Commercial Dialogue (S&CD) which was held in Washington, DC on September 22, 2015. The S&CD is the signature, annual forum for policy discussions between the United States Government and the Government of India. The United States and Indian Governments are using this vehicle to advance their shared priorities of generating economic growth, creating jobs, and strengthening the middle class. U.S. Secretary of State John Kerry and U.S. Secretary of Commerce Penny Pritzker co-chaired the dialogue with their Indian counterparts, Minister of External Affairs Sushma Swaraj and Minister of Commerce and Industry Nirmala Sitharaman.
Below are highlights of work agreed to on standards cooperation at the September 22, 2015 S&CD:
Standards Cooperation: The United States and India are working together to participate in the development of international standards and technical regulations to boost trade and help reduce administrative and logistical burdens, which disproportionately affect small and medium sized enterprises. The United States and India will engage their respective industries to identify up to two sectors where standards and conformity assessment-focused cooperative dialogues could lead to mutual benefit and increased trade. To support the removal of barriers that impact the global supply chain, the United States and India will exchange best practices for the operation of national Enquiry Points under the World Trade Organization Agreement on Technical Barriers to Trade and will explore opportunities for more cooperation on reference standards between India's National Physical Laboratories (NPL) and the National Institute of Standards and Technology (NIST). The United States and India announced a private sector-led collaboration to update a bilateral standards portal, which facilitates the sharing of information to improve industry understanding of market access requirements in both countries.
Request For Public Input: Submissions relevant to this request for public input should be submitted no later than 60 days after the date of this notice and can be submitted online or in writing.
Written submissions should be directed to Michael Boyles, Office of Standards and Investment Policy, Industry and Analysis, U.S. Department of Commerce, Room 22025, 14th and Constitution Avenue NW., Washington, DC 20230.
Online submissions should be submitted using
In order to ensure the timely receipt and consideration of comments, ITA strongly encourages commenters to make online submissions using
All comments and recommendations submitted in response to this notice will be made available to the public so should not include any privileged or confidential business information. The file name should begin with the character “P” (signifying that the comments contain no privileged or confidential business information and can be posted publicly), followed by the name of the person or entity submitting the comments. Written submissions should include an original and five (5) copies.
Please do not attach separate cover letters to electronic submissions; rather, include any information that might appear in a cover letter in the comments themselves. Similarly, to the extent possible, please include any exhibits, annexes, or other attachments in the same file as the submission itself, not as separate files.
Submissions should include: A description of the main standards-related barrier(s) affecting U.S.-India trade in the sector (
Submissions must identify private-sector leaders from the United States and India that have mutually agreed to coordinate and lead a cooperative dialogue among stakeholders in the sector from both the United States and India to develop recommendations for the U.S. and Indian governments on breaking down standards-related barriers in their sector. Confirmation of such agreement is encouraged. No U.S. Government funding will be provided for these activities.
Additionally, submissions should provide information on current and previous efforts to address standards-related barriers to bilateral trade in the sector, including under other government-to-government initiatives, to help evaluate the potential for liberalization of barriers identified. Submissions should also provide information, if known, about the U.S. and Indian government authorities, in particular regulators, whose actions impact the sector, and who would need to be involved in implementing the recommendations that the private sector leads will develop under a U.S.-India cooperative dialogue on the subject sector. Before finalizing priority sector selection, U.S. and Indian government S&CD leads will confirm that their respective relevant regulators support targeted work in the sector. Additional information also is welcome that would help USDOC and its interagency partners evaluate prospects for growth in bilateral trade in the sector, if this work is undertaken.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is conducting the tenth administrative review (“AR”) of the antidumping duty order on wooden bedroom furniture (“WBF”) from the People's Republic of China (“PRC”). The period of review (“POR”) is January 1, 2014, through December 31, 2014. We invite interested parties to comment on these preliminary results.
Patrick O'Connor or Jeffrey Pedersen, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0989, and (202) 482-2769, respectively.
The product covered by the order is wooden bedroom furniture, subject to certain exceptions.
The Department is conducting this review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (“the Act”) and 19 CFR 351.213. For a full description of the methodology underlying our conclusions, see the Preliminary Decision Memorandum, which is hereby adopted with this notice. A list of topics discussed in the Preliminary Decision Memorandum is provided as Appendix I to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”). ACCESS is available to registered users at
The Department selected Shanghai Jian Pu Import & Export Co., Ltd. (“Jian Pu”) as the sole mandatory respondent.
In addition, six other companies for which a review was requested failed to provide separate rate applications or certifications necessary to establish their eligibility for a separate rate.
Based on an analysis of U.S. Customs and Border Protection (“CBP”) information, and comments provided by a number of companies, the Department preliminarily determines that 11 of the companies for which an AR was requested and that claimed no shipments during this POR did not have any reviewable transactions during the POR.
Interested parties are invited to comment on the preliminary results and may submit case briefs and/or written comments, filed electronically using ACCESS, within 30 days of the date of publication of this notice, pursuant to 19 CFR 351.309(c)(1)(ii). Rebuttal briefs, limited to issues raised in the case briefs, will be due five days after the due date for case briefs, pursuant to 19 CFR 351.309(d). Parties who submit case or rebuttal briefs in this review are requested to submit with each argument a statement of the issue, a summary of the argument not to exceed five pages, and a table of statutes, regulations, and cases cited, in accordance with 19 CFR 351.309(c)(2).
Any interested party may request a hearing within 30 days of publication of this notice.
The Department will issue the final results of this AR, which will include the results of its analysis of issues raised in any briefs received, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.
Upon issuing the final results of these reviews, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.
For each individually examined respondent in this review whose weighted-average dumping margin is above
The Department announced a refinement to its assessment practice in NME cases. Pursuant to this refinement in practice, for entries that were not reported in the U.S. sales database submitted by companies individually examined during the AR, the Department will instruct CBP to liquidate such entries at the PRC-wide rate. Additionally, if the Department determines that an exporter had no shipments of subject merchandise, any suspended entries that entered under that exporter's case number (
The following cash deposit requirements will be effective upon publication of the final results of these reviews for shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) For all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the rate for the PRC-wide entity, which is 216.01 percent; and (2) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter.
These deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213.
International Trade Administration, DOC.
Notice of federal advisory committee meeting.
This notice sets forth the schedule and proposed agenda of a meeting of the Environmental Technologies Trade Advisory Committee (ETTAC).
The meeting is scheduled for Tuesday, January 12, 2016, at 8:30 a.m. Eastern Standard Time (EST).
The meeting will be held in Room 48019 at the U.S. Department of Commerce, Herbert Clark Hoover Building, 1401 Constitution Avenue NW., Washington, DC 20230.
Ms. Amy Kreps, Office of Energy & Environmental Industries (OEEI), International Trade Administration, Room 4053, 1401 Constitution Avenue NW., Washington, DC 20230 (Phone: 202-482-3835; Fax: 202-482-5665; email:
The meeting will take place from 8:30 a.m. to 3:30 p.m. EST. The general meeting is open to the public and time will be permitted for public comment from 3:00-3:30 p.m. EST. Those interested in attending must provide notification by Wednesday, December 30, 2015 at 5:00 p.m. EST, via the contact information provided above. Written comments concerning ETTAC affairs are welcome any time before or after the meeting. Minutes will be available within 30 days of this meeting.
The agenda for this meeting will include discussion of priorities and objectives for the committee, trade promotion programs within the International Trade Administration, and subcommittee working meetings.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On June 8, 2015, the Department of Commerce (the “Department”) published the preliminary results of the fifth administrative review (“AR”) of the antidumping duty order on citric acid and certain citrate salts (“citric acid”) from the People's Republic of China (“PRC”), in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (“the Act”).
Krisha Hill, Maisha Cryor, or Aleksandras Nakutis, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4037, (202) 482-5831, or (202) 482-3147, respectively.
For a full history of the events that have taken place since the publication of the
The merchandise covered by this order is citric acid and certain citrate salts from the PRC. The product is currently classified under subheadings 2918.14.0000, 2918.15.1000, 2918.15.5000, and 3824.90.9290 of the Harmonized Tariff System of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of merchandise subject to the scope is dispositive. For a full description of the scope of the order, see Issues and Decision Memorandum.
All issues raised in parties' case and rebuttal briefs are addressed in the Issues and Decision Memorandum. In an Appendix to this notice, we have provided a list of the issues raised by parties.
Based on our review of the record and comments received from interested parties regarding our
• We deducted letter of credit costs from brokerage and handling expense for both respondents.
• We made adjustments to labor and limestone consumption in Taihe's co-product calculations.
• We made adjustments to the export subsidy calculation for RZBC I&E.
In the Preliminary Results, the Department preliminarily determined that Yixing Union did not have any reviewable transactions during the POR. We have not received any information to contradict this determination. Therefore, the Department determines that Yixing Union did not have any reviewable entries of subject merchandise during the POR, and will issue appropriate instructions that are consistent with our “automatic assessment” clarification, for these final results.
We determine that the following weighted-average dumping margins exist for the POR:
Pursuant to section 751(a)(2)(C) of the Act and 19 CFR 351.212(b), the Department has determined, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries covered by this review. The Department intends to issue assessment instructions to CBP 15 days after the publication date of these final results of this review. In accordance with 19 CFR 351.212(b)(1), we are calculating importer- (or customer-) specific assessment rates for the merchandise subject to this review. For any individually examined respondent whose weighted-average dumping margin is above
Pursuant to a refinement in the Department's non-market economy (“NME”) practice, for entries that were not reported in the U.S. sales databases submitted by companies individually examined during this review, the Department will instruct CBP to liquidate such entries at the PRC-wide rate (
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) For Yixing Union, which claimed no shipments, the cash deposit will remain unchanged from the rate assigned to Yixing Union in the most recently completed review of the company; (2) for the exporters listed above, the cash deposit rate will be the rate listed for each exporter in the table in the “Final Results” section of this notice; (3) for previously investigated or reviewed PRC and non-PRC exporters that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the existing exporter-
We intend to disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding in accordance with 19 CFR 351.224(b).
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties has occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing these final results of administrative review and notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) completed its administrative review of the countervailing duty order
Davina Friedmann, Tyler Weinhold or Robert James, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0698, (202) 482-1121 or (202) 482-0649, respectively.
On June 9, 2015, the Department published the Preliminary Results of this administrative review.
The merchandise covered by the
Imports of the subject merchandise are provided for under the following categories of the Harmonized Tariff Schedule of the United States (HTSUS): 7610.10.00, 7610.90.00, 7615.10.30, 7615.10.71, 7615.10.91, 7615.19.10, 7615.19.30, 7615.19.50, 7615.19.70, 7615.19.90, 7615.20.00, 7616.99.10, 7616.99.50, 8479.89.98, 8479.90.94, 8513.90.20, 9403.10.00, 9403.20.00, 7604.21.00.00, 7604.29.10.00, 7604.29.30.10, 7604.29.30.50, 7604.29.50.30, 7604.29.50.60, 7608.20.00.30, 7608.20.00.90, 8302.10.30.00, 8302.10.60.30, 8302.10.60.60, 8302.10.60.90, 8302.20.00.00, 8302.30.30.10, 8302.30.30.60, 8302.41.30.00, 8302.41.60.15, 8302.41.60.45, 8302.41.60.50, 8302.41.60.80, 8302.42.30.10, 8302.42.30.15, 8302.42.30.65, 8302.49.60.35, 8302.49.60.45, 8302.49.60.55, 8302.49.60.85, 8302.50.00.00, 8302.60.90.00, 8305.10.00.50, 8306.30.00.00, 8418.99.80.05, 8418.99.80.50, 8418.99.80.60, 8419.90.10.00, 8422.90.06.40, 8479.90.85.00, 8486.90.00.00, 8487.90.00.80, 8503.00.95.20, 8515.90.20.00, 8516.90.50.00, 8516.90.80.50, 8708.80.65.90, 9401.90.50.81, 9403.90.10.40, 9403.90.10.50, 9403.90.10.85, 9403.90.25.40, 9403.90.25.80, 9403.90.40.05, 9403.90.40.10, 9403.90.40.60, 9403.90.50.05, 9403.90.50.10, 9403.90.50.80, 9403.90.60.05, 9403.90.60.10, 9403.90.60.80, 9403.90.70.05, 9403.90.70.10, 9403.90.70.80, 9403.90.80.10, 9403.90.80.15, 9403.90.80.20, 9403.90.80.30, 9403.90.80.41, 9403.90.80.51, 9403.90.80.61, 9506.51.40.00, 9506.51.60.00, 9506.59.40.40, 9506.70.20.90, 9506.91.00.10, 9506.91.00.20, 9506.91.00.30, 9506.99.05.10, 9506.99.05.20, 9506.99.05.30, 9506.99.15.00, 9506.99.20.00, 9506.99.25.80, 9506.99.28.00, 9506.99.55.00, 9506.99.60.80, 9507.30.20.00, 9507.30.40.00, 9507.30.60.00, 9507.90.60.00, and 9603.90.80.50.
The subject merchandise entered as parts of other aluminum products may be classifiable under the following additional Chapter 76 subheadings: 7610.10, 7610.90, 7615.19, 7615.20, and 7616.99 as well as under other HTSUS chapters. In addition, fin evaporator coils may be classifiable under HTSUS numbers: 8418.99.80.50 and 8418.99.80.60. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this
All issues raised in the parties' briefs are addressed in the Issues and Decision Memorandum, dated concurrently with this notice, and which is hereby adopted by this notice. A list of the issues raised is attached to this notice at Appendix I.
The Department conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we find that there is a subsidy,
For those companies named in the
Also, between August 1, 2014 and September 5, 2014, the Department received timely no-shipment certifications from certain companies. The Department confirmed with U.S. Customs and Border Protection (CBP) that these companies did not ship merchandise to the United States during this review period.
There are 38 companies for which a review was requested and not rescinded, but were not selected as mandatory respondents. For these companies, we calculated the non-selected rate using a methodology of weight-averaging the rates of the Guang Ya Group and Jangho Group based on
For those companies that failed to respond to the Department's quantity and value questionnaire, we have relied on facts available, determined that those companies are non-cooperative and, on that basis, found that the application of adverse facts available is warranted in determining the net countervailable subsidy rate for those companies. For further discussion of this determination, refer to the section in the Issues and Decision Memorandum entitled, “Use of Facts Otherwise Available and Adverse Inferences.”
In accordance with 19 CFR 351.221(b)(5), we determine the following final net subsidy rates for the 2013 administrative review:
The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of these final results of review, to liquidate shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after January 1, 2013, through December 31, 2013, at the
The Department also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amounts indicated above for each company listed on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review. For all non-reviewed firms, we will instruct CBP to collect cash deposits of estimated countervailing duties at the most recent company-specific or all-others rate applicable to the company,
This notice serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
10:30 a.m. EST, Wednesday, December 16, 2015.
CFTC Headquarters Lobby-Level Hearing Room, Three Lafayette Centre, 1155 21st Street NW., Washington, DC.
Open.
The Commission will hold this meeting to consider rulemaking matters, including two proposed rules and a final rule. The agenda for this meeting is available to the public and posted on the Commission's Web site at
Christopher J. Kirkpatrick, Secretary of the Commission, 202-418-5964.
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (Bureau) is requesting to renew the Office of Management and Budget (OMB) approval for an existing information collection titled, “Generic Information Collection Plan for Development and/or Testing of Model Forms, Disclosures, Tools, and Other Similar Related Materials.”
Written comments are encouraged and must be received on or before January 13, 2016 to be assured of consideration.
You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
•
•
Documentation prepared in support of this information collection request is available at
Department of the Army, DoD.
Notice to alter a system of records.
The Department of the Army proposes to alter a system of records notice AAFES 1609.03, entitled “AAFES Catalog System” is used to locate order information; to reply to customer inquiries and complaints; to create labels for shipment to the proper location; to refund customer remittances or to collect monies due; to provide claim and postal authorities with confirmation/certification of shipment for customer claims for damage or lost shipments.
Comments will be accepted on or before January 13, 2016. This proposed action will be effective on the date following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Ms. Tracy Rogers, Department of the Army, Privacy Office, U.S. Army Records Management and Declassification Agency, 7701 Telegraph Road, Casey Building, Suite 144, Alexandria, VA 22325-3905 or by calling (703) 428-6185.
The Department of the Army's notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
AAFES Catalog System (August 9, 1996, 61 FR 41572).
Delete entry and replace with “Headquarters, Army and Air Force Exchange Service, 3911 S. Walton Walker Boulevard, Dallas, TX 75236-1598.”
Delete entry and replace with “Customer name, Social Security Number (SSN), mailing address, email address, telephone number, method of payment, partial credit card number, name and address of recipient of order, description and price of item ordered, method of shipment, amount of order/refund, claim data for returns/damages to shipments, and freight entry assigned to shipment.”
Delete entry and replace with “10 U.S.C. 3013, Secretary of the Army; and 8013, Secretary of the Air Force; Department of Defense Instruction 1015.15, Establishment, Management, and Control of Nonappropriated Fund Instrumentalities and Financial Management of Supporting Resources; Army Regulation 215-8/Air Force Instruction 34-211(I), Army and Air Force Service Operations; and E.O. 9397 (SSN), as amended.”
Delete entry and replace with “The system is used to locate order information; to reply to customer inquiries and complaints; to create labels for shipment to the proper location; to refund customer remittances or to collect monies due; to provide claim and postal authorities with confirmation/certification of shipment for customer claims for damage or lost shipments.”
Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To the on-line ordering fulfillment contractor to allow for the confirmation by email of orders received, fulfilled and closed.
To Exchange vendor representative organizations for the purpose of direct shipment from the supplier to the customer.
Disclosures pursuant to 5 U.S.C. 552a(b)(12) may be made from this system to “consumer reporting agencies” as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)). The purpose of this disclosure is to aid in the collection of outstanding debts owed to the Federal government, typically to provide an incentive for debtors to repay delinquent Federal government debts by making these debts part of their credit records. The disclosure is limited to information necessary to establish the identity of the individual, including name address, and SSN.
The DoD Blanket Routine Uses set forth at the beginning of the Army's compilation of system of records notices may apply to this system. The complete list of DoD Blanket Routine Uses can be found online at:
Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system:
Delete entry and replace with “Electronic storage media and paper records.”
Delete entry and replace with “By order number, purchase order number, customer's name, name of recipient, phone number, SSN, or freight entry assigned to shipment.”
Delete entry and replace with “Information on shipments is maintained in computer files for 180 days following completion of shipment and destroyed after 6 years or until obsolete or superseded.
Purchase orders are retained for 2 years; transaction records are retained for 2 years; refund vouchers are retained for 6 years; returned merchandise slips are retained for 6 years; repair/replacement order slips are held 2 years. All records are destroyed by shredding. All electronic records are destroyed by erasing/reformatting the media.
Customer records are kept continuously until obsolete or superseded, at which point paper records are shredded, and electronic records are destroyed by erasing/reformatting the media.”
Delete entry and replace with “Director/Chief Executive Officer, Army and Air Force Exchange Service, 3911 S. Walton Walker Boulevard, Dallas, TX 75236-1598.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Director/Chief Executive Officer, Army and Air Force Exchange Service, 3911 S. Walton Walker Boulevard, Dallas, TX 75236-1598.
Individual should provide name, current address and telephone number, and sufficient details to permit locating pertinent records.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).'
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).' ”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the Director/Chief Executive Officer, Army and Air Force Exchange Service, Attention: FOIA/Privacy Manager, 3911 S. Walton Walker Boulevard, Dallas, TX 75236-1598.
Individual should provide name, current address and telephone number, and sufficient details to permit locating pertinent records.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).'
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).' ”
Department of the Army, DoD.
Notice to alter a System of Records.
The Department of the Army proposes to alter a system of records notice AAFES 0404.01, entitled “Incentive Awards Case Files,” to consider and select employees for incentive awards and other honors.
Comments will be accepted on or before January 13, 2016. This proposed action will be effective on the date following the end of the comment
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Ms. Tracy Rogers, Department of the Army, Privacy Office, U.S. Army Records Management and Declassification Agency, 7701 Telegraph Road, Casey Building, Suite 144, Alexandria, VA 22325-3827 or by calling (703) 428-7499.
The Department of the Army's notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
Incentive Awards Case Files (August 9, 1996, 61 FR 41572).
Delete entry and replace with “Headquarters, Army and Air Force Exchange Service, 3911 S. Walton Walker Boulevard, Dallas, TX 75236-1598.”
Delete entry and replace with “Nonappropriated Funds Instrumentalities (NAFI) employees of the Army and Air Force Exchange Service who are recipients of awards.”
Delete entry and replace with “Name, Social Security Number (SSN), telephone number, current address, grade/step, position title, award nominated for and justification, accomplishments, requirements of position held, organization in which employed.”
Delete entry and replace with “10 U.S.C. 3013, Secretary of the Army; 10 U.S.C. 8013, Secretary of the Air Force; Army Regulation 215-8/Air Force Instruction 34-211(I), Army and Air Force Exchange Service Operations; and E.O. 9397 (SSN), as amended.”
Routine uses of records maintained in the system, including categories of users and the purposes of such uses: Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
Information may be disclosed to public and private organizations, including news media, which grant or publicize employee awards or honors.
The DoD Blanket Routine Uses set forth at the beginning of the Army's compilation of system of records notices may apply to this system. The complete list of DoD blanket routine uses can be found online at:
Delete entry and replace with “Paper records and electronic storage media.”
Delete entry and replace with “By individual's full name and SSN.”
Delete entry and replace with “Records are maintained in a controlled facility. Physical entry is restricted by the use of locks, guards, and is accessible only to authorized personnel. Access to records is limited to person(s) with an official “need to know” who are responsible for servicing the record in performance of their official duties. Persons are properly screened and cleared for access. Access to computerized data is role-based and further restricted by passwords, which are changed periodically. In addition, the integrity of automated data is ensured by internal audit procedures, data base access accounting reports, and controls to preclude unauthorized disclosure.”
Delete entry and replace with “Records are retained for 2 years, following which paper records are destroyed by shredding, and electronic media is destroyed by deleting/erasing.”
Delete entry and replace with “Director/Chief Executive Officer, Army and Air Force Exchange Service, 3911 S. Walton Walker Boulevard, Dallas, TX 75236-1598.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Director/Chief Executive Officer, Army and Air Force Exchange Service, 3911 S. Walton Walker Boulevard, Dallas, TX 75236-1598.
Individual should provide full name, SSN, current address and telephone number, and sufficient details to assist in locating the record.
In addition, the requestor must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the Director/Chief Executive Officer, Army and Air Force Exchange Service, Attention: FOIA/Privacy Manager, 3911 S. Walton Walker Boulevard, Dallas, TX 75236-1598.
Individual should provide full name, SSN, current address and telephone number, and sufficient details to assist in locating the record.
In addition, the requestor must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)'
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.”
Delete entry and replace with “The Army's rules for accessing records and for contesting the contents of the records and appealing the initial agency determinations are contained in Army Regulation 340-21; 32 CFR part 505; or may be obtained from the system manager.”
In notice document 2015-30491 appearing on page 75075 in the issue of Tuesday, December 1, 2015, make the following correction:
1. On page 75075, in the first column, in the
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before January 13, 2016.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
This request is to extend the current approval of reporting requirements contained in the regulations. The collection requirements in the regulations are necessary to meet institutional information reporting to students and staff as well as for reporting to Congress through the Secretary.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric reliability filings:
Take notice that the Commission received the following electric reliability 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:
This is a supplemental notice in the above-referenced proceeding FTS Master Tenant 1, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is December 28, 2015.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding Central Antelope Dry Ranch C LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is December 28, 2015.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file motions to intervene, protests, comments, or recommendations using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
This notice identifies the Federal Energy Regulatory Commission (Commission or FERC) staff's revised schedule for the completion of the environmental assessment (EA) for East Tennessee Natural Gas, LLC's Loudon Expansion Project. The previous notice of schedule, issued on October 28, 2015, identified December 21, 2015 as the EA issuance date. Staff has revised the schedule for issuance of the EA.
If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies are kept informed of the project's progress.
In order to receive notification of the issuance of the EA and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. Go to
On December 7, 2015, the Commission issued an order in Docket No. EL16-13-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into the justness and reasonableness of Emera Maine's proposed revisions to its Open Access Transmission Tariff for Maine Public District.
The refund effective date in Docket No. EL16-13-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Environmental Protection Agency (EPA).
Notice of availability.
The Environmental Protection Agency (EPA) is approving and announcing the availability of the latest version of the California EMFAC (short for EMission FACtor) model for use in state implementation plan (SIP) development and transportation conformity in California. EMFAC2014 is the latest update to the EMFAC model for use by California state and local governments to meet Clean Air Act (CAA) requirements. The new model, which is based on new and improved data, calculates air pollution emissions factors for passenger cars, trucks, motorcycles, motor homes and buses. Today's notice also sets the date after which EMFAC2014, rather than EMFAC2011, must be used to satisfy the requirement that conformity determinations be based on the latest emissions model available. This requirement can be met by using the most current version of the motor vehicle emissions model approved by the EPA. Since the EMFAC model is used only in California, the EPA's approval and the announcement of the availability of the model does not affect the applicability of the Motor Vehicle Emissions Simulator (MOVES) model for users in other states.
The EPA's approval of the EMFAC2014 emissions model for SIP and conformity purposes is effective December 14, 2015. EMFAC2014 must be used as described in this Notice for all new regional emissions analyses and carbon monoxide (CO) and particulate matter (PM
Karina O'Connor,
Copies of the official version of the EMFAC2014 model, including technical support documents, are available on the California Air Resources Board (CARB) Web site:
The EMFAC model is a computer model that can estimate emission rates for on-road mobile sources (“motor vehicles”) for calendar years from 2000 to 2050 operating in California. Pollutant emissions for hydrocarbons (HC), CO, nitrogen oxides (NO
EMFAC is used to calculate current and future inventories of motor vehicle emissions at the state, air district, air basin, county, or project level. EMFAC contains default vehicle activity data, and the option of modifying that data, so it can be used to estimate a motor vehicle emissions inventory in tons/day for a specific year, month, or season, and as a function of ambient temperature, relative humidity, vehicle population, mileage accrual, miles of travel and speeds. Thus the model can be used to make decisions about air pollution policies and programs at the local or state level.
Inventories based on EMFAC are also used to meet the federal CAA's SIP and transportation conformity requirements. Transportation conformity is required under CAA section 176(c) to ensure that federally supported transportation plans, transportation improvement programs (TIPs), and highway and transit projects are consistent with (“conform to”) the purpose of the SIP. Conformity to a SIP means that a transportation activity will not cause or contribute to new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards (NAAQS) or interim milestones. The EPA's transportation conformity regulations (40 CFR parts 51.390 and 93) describe how federally funded and approved highway and transit projects meet these statutory requirements. EMFAC is used statewide in all regional emissions analyses and CO, PM
Most SIPs in California were developed using EMFAC2011 (released by CARB in September 2011) or EMFAC2007 (released by CARB in October 2007). The EPA approved and announced the availability of EMFAC2011 on March 16, 2013 (78 FR 14533) and approved and announced the availability of EMFAC2007 on January 18, 2008 (73 FR 3464) for all nonattainment and maintenance areas in California.
EMFAC2011 was considered a major update to previous versions of EMFAC and most SIPs in California were updated with EMFAC2011 in the 2012-2014 timeframe. EMFAC2011 included a new model structure, new data and methodologies regarding calculation of motor vehicle emissions, and revisions to implementation data for control measures.
CAA section 172(c)(3) and 40 CFR 51.114(a) require that SIP inventories be based on the most current, accurate, and applicable models that are available at the time the SIP is developed. CAA section 176(c)(1) and 40 CFR 93.111(a) require that the latest emissions estimates be used in conformity analyses. The EPA approves models that fulfill these requirements.
Under 40 CFR 93.111(a), the EPA must approve new versions of EMFAC for SIP purposes before they can be used in transportation conformity analyses. In a May 21, 2015 letter, CARB requested that the EPA approve EMFAC2014 for use in developing SIPs and in determining conformity in California.
In this notice, the EPA is approving and announcing that EMFAC2014 is available to use in statewide California SIP development and for regional emissions analyses and CO, PM
The EMFAC2014 model has been rewritten using Python and MySQL software into a new structure that will facilitate future model updates, and allow CARB to incorporate updated regulations and emissions data into the model and provide for a more simplified user experience. The four major modules of EMFAC2011: EMFAC-LDV, EMFAC-HD, EMFAC-SG and EMFAC-PL have been integrated into EMFAC2014, under one interface. The model is now operated in either the Emissions Mode or the Emissions Rate Mode for regional emissions analyses to access emission databases and vehicle activity data for the appropriate geographic subarea. EMFAC2014 Project-Level Assessment (EMFAC2014-PL) is triggered when EMFAC2014 is run under the Emissions Rate Mode. Using EMFAC2014-PL, emissions rates are estimated based on user-specified, project-specific conditions. A handbook for using EMFAC2014 at the project level is available from CARB at:
The EPA is approving the model to estimate regional emissions of HC, CO, NO
The EPA is also approving EMFAC2014 to estimate CO, PM
The EPA also notes that this approval action does not impact what methodology is required for calculating re-entrained road dust for regional PM
EMFAC2014 includes significant changes to its model interface, new data and methodologies regarding calculation of motor vehicle emissions and revisions to implementation data for control measures. EMFAC2014 includes updated data on car and truck activities, and emissions reductions associated with CARB's Advanced Clean Cars regulations,
Since 2013, CARB has held a series of public workshops to discuss emissions inventory updates and EMFAC updates and to receive comments on the resulting changes in the emissions inventory and models.
CARB also made available to the public a series of technical memos that describe each update to the model and public presentations that summarize the changes from earlier versions of the model. The technical memos are available on CARB's Web site at:
Yes. The transportation conformity rule (40 CFR 93.111) requires that conformity determinations be based on the latest motor vehicle emissions model approved by the EPA for SIP purposes for a state or area. Section 176(c)(1) of the CAA states that
When the EPA approves and announces the availability of a new emissions model such as EMFAC2014, the EPA will consult with the U.S. Department of Transportation (DOT) to establish a grace period before the model is required for conformity analyses (40 CFR 93.111(b)). The conformity rule provides for a grace period for new emissions models of between 3 and 24 months after notice of availability is published in the
The EPA articulated its intentions for establishing the length of a conformity grace period in the preamble to the 1993 transportation conformity rule (November 24, 1993, 58 FR 62211):
EPA and DOT [the Department of Transportation] will consider extending the grace period if the effects of the new emissions model are so significant that previous SIP demonstrations of what emission levels are consistent with attainment would be substantially affected. In such cases, States should have an opportunity to revise their SIPs before MPOs must use the model's new emissions factors.
In consultation with the Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA), the EPA considers “the degree of change in the model and the scope of re-planning likely to be necessary by MPOs in order to assure conformity” in establishing the length of the grace period (40 CFR 93.111(b)(2)).
Upon consideration of these factors, the EPA is establishing a two-year grace period before EMFAC2014 is required for the following conformity analyses:
• All new HC, NO
• All new CO, PM
The grace period begins on December 14, 2015 and ends on December 14, 2017. Areas have the option of using the new model prior to the end of the grace period.
As discussed earlier in the notice, EMFAC2014 incorporates significant changes to the model interface and procedures used to estimate both emissions for regional emissions analysis and hot-spot analyses for CO and PM. In addition to incorporating the new EMFAC2014 procedures, state and local agencies also need to consider how the model affects regional conformity analysis results and whether SIP and/or transportation plan/TIP changes are necessary to assure future conformity determinations. As stated earlier in the notice, the changes to EMFAC impact emission factors for each area in California. CARB has requested an 18-month grace period to allow them to update SIPs previously developed using EMFAC2007 or EMFAC2011 with the updated emissions from EMFAC2014 during 2016. Therefore, additional time is necessary for CARB to revise previously approved SIPs with EMFAC2014 and complete the SIP revision process, so that MPOs can incorporate revised SIP budgets into the transportation conformity process.
For application of EMFAC2014 at the project level, while EMFAC2014 was originally released by CARB in October of 2014, project sponsors developing future project-level analysis may need some time to familiarize themselves with this model.
Therefore, it is appropriate to set a two-year grace period to allow all areas in California to incorporate EMFAC2014 in conformity hot-spot analyses and apply the changes to the model structure and updated planning assumptions incorporated in EMFAC2014 in a timely manner. In the interim, new PM and CO hot-spot analyses that are started prior to the end of the EMFAC2014 grace period can be based on EMFAC2011 and the EPA's existing PM hot-spot guidance
When the grace period ends on December 14, 2017, EMFAC2014 will become the only approved motor vehicle emissions model for all new regional and hot-spot transportation conformity analyses across California, as a means of meeting the requirement to use the latest emissions information in conformity analyses (40 CFR 93.111). In general, this means that all new HC, NO
In addition, in most cases, if an area revises previously approved EMFAC2011-based SIP budgets using EMFAC2014, the revised EMFAC2014 budgets would be used for conformity purposes once the EPA approves the SIP revision. In general, the EPA will not make adequacy findings for these SIPs because submitted SIPs cannot supersede approved budgets until they are approved. However, 40 CFR 93.118(e)(1) allows an approved budget to be replaced by an adequate budget if the EPA's approval of the initial budgets specifies that the budgets being approved may be replaced in the future by new adequate budgets. This flexibility has been used in limited situations in the past, such as during the transition from EMFAC7F and EMFAC7G to EMFAC2002. See 67 FR 46618 (July 16, 2002); 67 FR 69139 (November 15, 2002); and 68 FR 15720 (April 1, 2003). In such cases, the EMFAC2014-based budgets would be used for conformity purposes once they have been found adequate. States should consult with the EPA as needed
Yes, the conformity rule provides some flexibility for regional emissions analyses that are started before the end of the grace period. Analyses that begin before or during the grace period may continue to rely on EMFAC2011. The interagency consultation process should be used if it is unclear if an EMFAC2011-based analysis was begun before the end of the grace period. When the grace period ends, EMFAC2014 will become the EPA-approved motor vehicle emissions model for regional emissions analyses for transportation conformity in California.
CO, PM
On January 31, 2006, CARB submitted a letter to the EPA and to the California Division of the FHWA indicating the State's intention to make future revisions to update EMFAC. These EMFAC updates would reflect, among other new information, updated vehicle fleet data every three years. In California, MPOs and Air Districts have not been able to update vehicle fleet data embedded into EMFAC. The EPA's July 2004 final rule (69 FR 40004) states that new vehicle registration data must be used when it is available prior to the start of new conformity analyses and that states and MPOs are strongly encouraged to update the data at least every five years as described in EPA/USDOT December 2008 guidance.
As described in this notice, the EPA is approving and announcing the availability of EMFAC2014 as submitted by CARB on May 21, 2015 with the following limitations and conditions:
(1) The approval is limited to California.
(2) The approval is Statewide and applies to estimation of emissions of HC, CO, NO
(3) A 24-month statewide transportation conformity grace period will be established beginning December 14, 2015 and ending December 14, 2017 for the transportation conformity uses described in (2) above.
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 invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before January 4, 2016.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
The Commission is requesting emergency OMB processing of the information collection requirement(s) contained in this notice and has requested OMB approval no later than 26 days after the collection is received at OMB. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
The Commission is revising the currently approved information collection on FCC Form 175 to implement new collection requirements that are the result of (1) various Commission actions in which the Commission adopted general rules and procedures to govern the BIA, including rules applicable to applicants seeking to participate in the forward auction component of the BIA and, (2) the Commission's adoption of new and modified competitive bidding rules and requirements in the
The Commission's auction rules and related requirements are designed to ensure that the competitive bidding process is limited to serious qualified applicants, deter possible abuse of the bidding and licensing process, and enhance the use of competitive bidding to assign Commission licenses in furtherance of the public interest. The information collected on FCC Form 175 is used by the Commission to determine if an applicant is legally, technically, and financially qualified to participate in a Commission auction. Additionally, if an applicant applies for status as a particular type of auction participant pursuant to Commission rules, the Commission uses information collected on FCC Form 175 to determine whether the applicant is eligible for the status requested. Commission staff reviews the information collected on FCC Form 175 for a particular auction as part of the pre-auction process, prior to the auction being held. Staff determines whether each applicant satisfies the Commission's requirements to participate in the auction and, if applicable, is eligible for the status as a particular type of auction participant it requested. Without the information collected on FCC Form 175, the Commission will not be able to determine if an applicant is legally, technically, and financially qualified to participate in a Commission auction, including the forward auction component of the BIA, and has complied with the various applicable regulatory and statutory auction requirements for such participation. The Commission plans to continue to use the FCC Form 175 for all upcoming, non-reverse spectrum auctions, including those required or authorized to be conducted pursuant to the Spectrum Act, collecting only the information necessary for each particular auction.
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the renewal of existing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the FDIC is soliciting comment on the renewal of the information collections described below.
Comments must be submitted on or before February 12, 2016.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
•
•
•
All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and
Gary A. Kuiper or Manuel E. Cabeza, at the FDIC address above.
Proposal to renew the following currently-approved collections of information:
1.
2.
a. FDIC-Supervised Institutions with Assets of $1 Billion or More.
b. FDIC-Supervised Institutions with Assets of $500 Million or More but Less than $1 Billion.
c. FDIC-Supervised Institutions with Assets Less than $500 Million.
3.
Section 324.203(a)(1) requires FDIC-supervised institutions to have clearly defined policies and procedures for determining which trading assets and trading liabilities are trading positions and specifies the factors a FDIC-supervised institutions must take into account in drafting those policies and procedures. Section 324.203(a)(2) requires FDIC-supervised institutions to have clearly defined trading and hedging strategies for trading positions that are approved by senior management and specifies what the strategies must articulate. Section 324.203(b)(1) requires FDIC-supervised institutions to have clearly defined policies and procedures for actively managing all covered positions and specifies the minimum requirements for those policies and procedures. Sections 324.203(c)(4) through 324.203(c)(10) require the annual review of internal models and specify certain requirements for those models. Section 324.203(d) requires the internal audit group of a FDIC-supervised institution to prepare an annual report to the board of directors on the effectiveness of controls supporting the market risk measurement systems.
Section 324.204(b) requires FDIC-supervised institutions to conduct quarterly backtesting. Section 324.205(a)(5) requires institutions to demonstrate to the FDIC the appropriateness of proxies used to capture risks within value-at-risk models. Section 324.205(c) requires institutions to develop, retain, and make available to the FDIC value-at-risk and profit and loss information on sub-portfolios for two years. Section 324.206(b)(3) requires FDIC-supervised institutions to have policies and procedures that describe how they determine the period of significant financial stress used to calculate the institution's stressed value-at-risk models and to obtain prior FDIC approval for any material changes to these policies and procedures.
Section 324.207(b)(1) details requirements applicable to a FDIC-supervised institution when the FDIC-supervised institution uses internal models to measure the specific risk of certain covered positions. Section 324.208 requires FDIC-supervised institutions to obtain prior written FDIC approval for incremental risk modeling. Section 324.209(a) requires prior FDIC approval for the use of a comprehensive risk measure. Section 324.209(c)(2) requires FDIC-supervised institutions to retain and report the results of supervisory stress testing. Section 324.210(f)(2)(i) requires FDIC-supervised institutions to document an internal analysis of the risk characteristics of each securitization position in order to demonstrate an
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that the Federal Deposit Insurance Corporation's Board of Directors will meet in open session at 10:00 a.m. on Tuesday, December 15, 2015, to consider the following matters:
Disposition of minutes of previous Board of Directors' Meetings.
Memorandum and resolution: Review of Regulations Transferred from the Former Office of Thrift Supervision: Part 390, Subpart V—Management Official Interlocks.
Memorandum and resolution re: Notice of Proposed Rulemaking Regarding Proposed Revisions to Part 341 of the FDIC's Rules and Regulations Requiring the Registration of Securities Transfer Agents.
Memorandum and resolution re: Fourth Joint
Summary reports, status reports, reports of the Office of Inspector General, and reports of actions taken pursuant to authority delegated by the Board of Directors.
The meeting will be held in the Board Room located on the sixth floor of the FDIC Building located at 550 17th Street NW., Washington, DC.
This Board meeting will be Webcast live via the Internet and subsequently made available on-demand approximately one week after the event. Visit
The FDIC will provide attendees with auxiliary aids (
Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Executive Secretary of the Corporation, at 202-898-7043.
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 32.1, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
Federal Election Commission
Thursday, December 17, 2015 at 10:00 a.m.
999 E Street NW., Washington, DC (ninth floor)
This meeting will be open to the public.
Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Shawn Woodhead Werth, Secretary and Clerk, at (202) 694-1040, at least 72 hours prior to the meeting date.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Board of Governors of the Federal Reserve System.
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board of Governors of the Federal Reserve System (Board) its approval authority under the Paperwork Reduction Act (PRA), to approve of and assign OMB numbers to collection of information requests and requirements conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the PRA Submission, supporting statements and approved collection of information instruments are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB number.
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202) 452-3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW., Washington, DC 20503.
Final approval under OMB delegated authority of the extension for three years, with revision, of the following information collection:
The Board received four comment letters on the proposed revisions to the FR Y-15: Three from trade associations and one from a banking organization. In general, comments focused on the implementation of the proposed changes, the confidentiality of liquidity-related items, the move from annual to quarterly reporting, and the scope of application. Commenters requested delayed implementation of the new definitions, confidential treatment of certain liquidity data and quarterly reports, a phase-in of the quarterly reporting requirement, and an increased reporting threshold. The comments and responses are discussed in detail below.
Commenters expressed concern about the December 31, 2015, implementation date for the proposed changes. One commenter argued that respondents need six-to-nine months after a final notice is published to revise and validate their reporting systems, and that changes to items which measure total activity over the reporting period are particularly difficult to implement mid-year. Two of the commenters requested that the implementation date be delayed by six months (to June 30, 2016), with initial submissions being semiannual and on a reasonable estimates basis, while the other two commenters requested that the implementation date be delayed by a full year (to December 31, 2016). One commenter suggested that delaying the implementation date would better allow respondents to incorporate the changes into their capital planning processes.
In response to the comment that respondents need six or more months to revise and validate their reporting systems, the vast majority of the proposed changes either align definitions with other existing regulatory requirements, such as the supplementary leverage ratio (SLR) and
Delaying the implementation date of the proposed changes would cause data collected in the United States to be inconsistent with the global data used for G-SIB identification and calculation of the G-SIB surcharge.
Considering the number and type of changes being made, along with the need to remain consistent with the international standard, the Board is maintaining an effective date of December 31, 2015, as proposed. However, to allow extra time to implement and validate the revised calculations, the Board is extending the submission date for the end-2015 report from 65 calendar days to 90 calendar days after the December 31, 2015, as-of date. The submission date for subsequent year-end reports is 65 days from the December 31 as-of date.
According to the proposal, the new schedule designed to capture short-term wholesale funding (Schedule G) would be reported starting with the June 30, 2016, as-of date. This date was chosen in coordination with the proposed July 1, 2015, implementation of the Complex Institution Liquidity Monitoring Report (FR 2052a; OMB No. 7100-0361), as Schedule G relies on observations made in this report over the previous four quarters. In the proposal, the Board noted that “the effective date for banking organizations to report Schedule G may be delayed pending the implementation of the requirement for such organizations to report data on the FR 2052a”.
According to the proposal, respondents with total assets of $700 billion or more or with $10 trillion or more in assets under custody would be required to report average values on Schedule G using daily data, with all other respondents reporting averages using monthly data. The proposal further stated that respondents with $250 billion or more in on-balance sheet assets or $10 billion or more in foreign exposures would begin reporting average values using daily data starting with the end-June 2017 as-of date. These dates were chosen to correspond with the proposed submission frequency of the FR 2052a, so that respondents would be reporting averages commensurate with the availability of the underlying data.
The finalized FR 2052a reporting requirement no longer includes a transition from monthly to daily data for firms with $250 billion or more in on-balance sheet assets or $10 billion or more in foreign exposures.
Several commenters requested that the first submission after the effective date be made on a reasonable-estimates basis. It would be inappropriate to allow respondents that have previously submitted data used in the G-SIB score calculations (
The revised FR Y-15 allows the newly added memorandum items to be submitted on a reasonable-estimates basis, as they do not currently influence the G-SIB score calculation. Specifically, reasonable estimates are allowed for Schedule B, item M.1, and Schedule C, items M.1, M.2, and M.3, for the December 31, 2015, as-of date.
Under the proposal, the exposures data in Schedule A would have been calculated using average values over the reporting period. This was done to align the FR Y-15 reporting requirements with the SLR, as advanced approached institutions are already required to calculate the related exposures metric using averages.
The shift from point-in-time measures to quarterly averages would represent a notable increase in the reporting burden for these institutions. To mitigate the burden associated with the total exposures calculation, the revised FR Y-15 provides respondents not subject to the advanced approaches capital framework the option to continue submitting Schedule A using point-in-
One commenter argued that it would be difficult to calculate securities received as collateral in securities lending (item M.1) as an average of daily data, and suggested that quarter-end values may be sufficiently informative for monitoring systemic risk. To mitigate the burden associated with the memoranda items, the revised FR Y-15 requires respondents to provide Schedule A, items M.1, M.2, and M.3 as point-in-time values rather than averages.
On February 18, 2014, the Board adopted a final rule implementing enhanced prudential standards for foreign banking organizations (FBOs),
At such time that the Board proposes reporting requirements for IHCs, it would invite comment through the
Two commenters argued that Schedule G, which would collect data related to a firm's use of short-term wholesale funding, contains sensitive liquidity information. All of the commenters noted that certain information in the schedule is expected to be added in the future to a different regulatory reporting form, the FR 2052a, which is a confidential report. The commenters requested that Schedule G be kept confidential, arguing that the confidentiality of similar data elements should match across different regulatory reports. Alternatively, one commenter suggested using a materiality threshold to determine when the data in Schedule G would be publically disclosed. Two commenters requested that Schedule D, items 7 and 8 also be kept confidential, as these items, under their revised definitions, would likewise be sourced from the FR 2052a.
In contrast to the FR 2052a, which collects raw, daily liquidity and funding data that are reported with a two-day delay, Schedule G collects aggregate funding data that are averaged over a twelve-month period and reported with a 50-day delay for quarterly submissions and a 65-day delays for annual submissions. For these reasons, the data reported in Schedule G is fundamentally different from the related items that are reported in the FR 2052a. Disclosing the data in Schedule G therefore does not present the same confidentiality concerns as would disclosing the data in the FR 2052a, because the data in Schedule G are aggregate rather than granular data, averaged over a 12-month period rather than not averaged, and reported with a 50-day or 65-day delay rather than with a two-day delay.
Moreover, releasing the data reported in the FR Y-15, including the information captured in Schedule G, serves the important policy goal of providing valuable insight into the domestic systemic risk landscape. This data could be used by the U.S. financial markets to evaluate the systemic footprint of individual firms. In particular, disclosing the short-term wholesale funding data in Schedule G provides public insight into how the Board is evaluating the systemic footprint of organizations subject to section 165 of DFA, including how enhanced prudential standards are applied to these organizations in accordance with their relative systemic importance. In addition to increasing transparency, providing this type of data to the public encourages market discipline regarding incremental changes in systemic risk.
To better align the timing of the disclosure of LCR-related liquidity data in the FR Y-15, the revised FR Y-15 maintains the confidentiality of certain data items (and delays the public release of certain data items) until related LCR disclosure requirements are in place. In particular, the revised FR Y-15 delays disclosing the more granular short-term funding data (Schedule G, items 1 through 4) until the first reporting date after the LCR disclosure standard has been implemented.
The items in Schedule D related to the LCR are essential components of the trading and available-for-sale (AFS) securities indicator that are already disclosed publicly as part of the FR Y-15. The proposed revisions to the FR Y-15 would have harmonized certain definitions in Schedule D with the definitions used in the U.S. LCR to reduce reporting burden and enhance regulatory consistency.
Under the proposal, the reporting frequency of the FR Y-15 would have been modified from annual to quarterly starting with the reporting period ending March 31, 2016. Two commenters argued that the increased frequency is unnecessary because the systemic footprint of a BHC is unlikely to change significantly on a quarterly basis and that other supervisory mechanisms exist that could be leveraged to assess the systemic risk profile of BHCs. One commenter further suggested that a large merger is the most likely source of a major short-term change to the systemic risk profile of a non-G-SIB and that such changes will receive separate scrutiny regarding systemic risk. The commenters requested that the annual reporting frequency be maintained. To further alleviate reporting burden, one of the commenters suggested staggering the due dates of the various schedules so that the report is collected in stages throughout the year.
An institution's systemic profile is not necessarily static throughout the year, especially to the extent that a firm takes active steps to reduce their systemic footprint. Large year-over-year changes have been observed in the past and may continue to be observed in the future as firms react to the implementation of the G-SIB framework. Under the current reporting regime, any large changes in systemic footprint are only observed at year-end.
The supervisory mechanisms suggested by commenters such as the Comprehensive Capital Analysis and Review (CCAR), the Dodd-Frank Act Stress Tests (DFAST), and resolution planning, are not adequate substitutes for the FR Y-15 as they were not designed to capture the systemic footprint of an institution. The FR Y-15 report provides consistent and comparable measures of systemic risk that, unless otherwise noted, are unavailable from other sources.
Staggering the due dates of the schedules would increase the collection frequency without increasing the number of observations made in a single year. Thus, this approach would not allow for the monitoring of changes in an institution's systemic footprint throughout the year.
Finally, the year-end values currently being reported may not be indicative of an institution's systemic footprint throughout the year. Quarterly reporting would allow for a more robust assessment of a firm's overall systemic footprint. For all these reasons, the revised FR Y-15 requires quarterly reporting, as proposed.
A number of commenters requested that non-year-end data be kept confidential. One commenter noted that other jurisdictions do not require quarterly disclosures of the G-SIB data and argued that releasing the quarterly information could put U.S. BHCs at a competitive disadvantage compared to their foreign competitors who disclose the data on a less frequent basis.
Releasing the data reported on the FR Y-15 helps promote important policy goals, such as transparency and market discipline. As previously stated, the FR Y-15 currently provides valuable information about the domestic systemic risk landscape that can be used by the market to evaluate the systemic importance of individual institutions on a national level.
One commenter noted that the technical challenges associated with switching to a more frequent data collection are compounded by the number of additional reporting requirements that will be implemented in the coming year (
In light of the technical challenges associated with the shift to more frequent reporting, including implementing and testing quarterly reporting systems, the revised FR Y-15 delays implementation of the quarterly reporting requirement for three months, to June 30, 2016.
Two commenters requested that the submission deadline for quarterly reports be extended to 65 calendar days after the quarter-end to avoid overlap with other reports that contain source data for the FR Y-15. One commenter noted that such an extension would align the quarter-end and year-end filing requirements.
Staff supports the use of staggered submission dates, where feasible, in order to ease potential resource constraints. The proposed 50-day submission deadline was chosen after considering the due dates of other major quarterly reports, including those which contain source data for the FR Y-15.
There may be instances in the future where data is sourced from another report that is not yet due to be submitted at the time the FR Y-15 is due.
The FR Y-15 is collected from BHCs with total consolidated assets of $50 billion or more. One commenter argued that this threshold may not be appropriate as it scopes in many BHCs that do not materially engage in the
A second commenter argued that it may not be appropriate to include regional banking organizations in the reporting panel as they have systemic scores that are significantly smaller than those of the G-SIBs. To alleviate the reporting burden on smaller institutions, the commenter suggested raising the reporting threshold to $300 billion so that only G-SIBs are subject to the reporting requirement. A third commenter questioned the necessity of collecting Schedule G data from BHC subsidiaries of FBOs, as these institutions are not subject to the U.S. G-SIB rule.
While the data on the FR Y-15 is indeed used to inform G-SIB designation,
To maintain an informed view of the macroprudential risks associated with banking organizations, it is important to look beyond the footprints of the eight U.S. G-SIBs. This principal applies, for example, in the G-SIB designation process, where all U.S. top-tier bank holding companies that are advanced approaches institutions must calculate a measure of systemic importance.
Institutions not subject to the G-SIB capital rule can have material systemic footprints. While systemic risk can arise due to the solitary actions of a very large firm, it may also arise due to the interactions between firms. Through their interconnectedness, complexity, and facilitation of critical banking activities, institutions which have not been designated as G-SIBs may still play a systemically-important role in the U.S. banking system.
Moreover, reducing the reporting scope to only those institutions subject to the G-SIB rule would dramatically limit the number of respondents. Adopting a more restricted reporting requirement could incentivize non-respondents to pursue additional systemic activities, especially those which would not affect their reporting status. Any increases in systemic footprint that result may then go unobserved.
For the reasons outlined above, the revised FR Y-15 applies to all bank holding companies with total consolidated assets of $50 billion or more, which is consistent with the asset threshold in section 165 of DFA. Moreover, as short-term wholesale funding is a critical component of the systemic risk profile that the FR Y-15 was designed to assess, Schedule G applies to all respondents, including subsidiaries of FBOs.
The FR Y-15 instructions direct respondents to provide a brief explanation of any unusual changes from the previous report. One commenter noted that unusual changes is not explicitly defined. The commenter also suggested that it would reduce administrative burden if explanations were submitted electronically.
The revised FR Y-15 instructions state that unusual changes are differences that are not attributable to general organic growth and/or standard fluctuations in the business cycle. The FR Y-15 is not the only report with the unusual changes provision (
One commenter requested that mapping information be made available for data elements derived from other sources, such as a mapping between Schedule A and the SLR disclosures, and a mapping between Schedule G and the FR 2052a.
Mapping information for data items automatically retrieved from other reports is already provided in Section H of the General Instructions of the FR Y-15. Should additional items become available in other regulatory reports, the instructions would be updated such that these items are automatically retrieved and no additional reporting is required. To ease reporting burden and ensure data comparability, the revised FR Y-15 includes additional information in the reporting instructions regarding the connection between the items in Schedule A and the SLR disclosure tables. The Board will provide information regarding the connection between Schedule G and the FR 2052a prior to the Schedule G effective date.
Two commenters noted that the SLR rule permits the netting of certain on-balance sheet securities financing transactions (SFTs), but that SFT items in the FR Y-15 require gross reporting. They requested that SFTs be reported on a net basis throughout the report where the underlying transaction meets the netting criteria specified in the SLR.
Schedule A, item 2(a) is intended to mirror the requirements under the SLR and the revised reporting instructions clarify this point. However, Schedule F, item 6 and 7 are not intended to mirror the requirements under the SLR. Therefore, the revised FR Y-15 maintains the current reporting definitions for the SFT items in Schedule F, as they mirror the international standard and thus promote comparability.
Under the proposal, regulatory adjustments (Schedule A, item 3(b)) would be reported as a quarterly average of daily data. One commenter argued that this treatment diverges from the method used for the purposes of the SLR and that the calculation would be challenging to implement. The commenter requested that respondents be permitted to report regulatory adjustments as point-in-time data. In response, the revised FR Y-15 collects regulatory adjustments using point-in-time data, consistent with the requirement in the SLR.
One commenter noted that the instructions for Schedule B, item 3(f) appear to exclude the short legs of derivatives used to hedge the equity securities reported in Schedule B, item 3(e). The commenter requested that the instructions be amended to explicitly include these derivatives, as doing so would be consistent with the international standard. In response, the instructions to the FR Y-15 have been revised to include these derivatives.
Two commenters noted that the proposed revisions appear to expand the scope of items capturing over-the-counter (OTC) derivatives to also
The revisions in question were not intended to alter the scope of the OTC derivatives items. In response, the revised FR Y-15 reverts to the original line names for the OTC derivative items throughout the report to make it clear that exchange-traded derivatives should not be reported.
One commenter argued that including in Schedule B special purpose entities (SPEs) that are a part of a consolidated financial institution would be very difficult to operationalize, as the consolidation status of such entities is not generally public information. Considering this operational challenges, the revised FR Y-15 removes this requirement. The Board may revisit reporting requirements for SPEs in the future.
One commenter noted that Level 3 trading assets are being counted both in the trading and AFS securities indicator and in the Level 3 assets indicator. The commenter expressed concern that this results in counting the same assets twice within a single indicator.
The trading and AFS securities indicator is a separate and distinct indicator from the one capturing Level 3 assets. Thus, Level 3 trading assets are not being double counted within the same indicator. Accordingly, the revised FR Y-15 maintains the current treatment of Level 3 assets in the trading and AFS securities indicator.
Commenters asked for a number of technical clarifications regarding specific data items on the FR Y-15 form. The revised FR Y-15 instructions address these questions and others that have been received.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection request entitled “Ingress/Egress and Work Boot Outsole Wear Investigation at Surface Mining Facilities”. The goal of this work is to investigate how ingress/egress systems on mobile equipment and personal protective footwear (work boots) used by miners may lead to slips, trips and falls by interviewing and surveying mine workers and examining work boot outsole characteristics.
Written comments must be received on or before February 12, 2016.
You may submit comments, identified by Docket No. CDC-2015-0111 by any of the following methods:
All public comment should be submitted through the Federal eRulemaking portal (Regulations.gov) or by U.S. mail to the address listed above.
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
Ingress/Egress and Work Boot Outsole Wear Investigation at Surface Mines—New—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
The mission of the National Institute for Occupational Safety and Health (NIOSH) is to promote safety & health at work for all people through research and prevention. NIOSH, under PL 91-173 as amended by PL 95-164 (Federal Mine Safety and Health Act of 1977) has the responsibility to conduct research to improve working conditions and to prevent accidents and occupational diseases in the U.S. mining sector. The goal of the proposed project is to investigate how ingress/egress systems on mobile equipment, and personal protective footwear (boots) used by miners may lead to slips, trips and falls at stone, sand and gravel surface mining facilities. NIOSH is requesting a 3-year approval for this data collection.
The project objective will be achieved through two studies. The first study aims to: Identify elements of ingress/egress systems on haulage trucks and front end loaders that pose a risk of slips, trips and falls (STFs) and could lead to STF related injuries; to determine worker behavior associated with STF incidents; and to learn how purchasing/maintenance decisions are made for ingress/egress systems. In the surface mining industry, it is still unclear which component of the ingress/egress system poses the greatest risk for STF. Hence there is a need to understand where, how and why STF incidents occur during ingress/egress on mobile equipment.
NIOSH will conduct semi-structured interviews and focus groups with mobile equipment operators, and interviews with mine management to explore the issues identified above. Focus groups will be conducted in a private setting with 4-6 participants using a predefined list of questions to help guide the discussion. Semi-structured interviews will be conducted either in person or over the telephone. Two separate interview guides will be used for mobile equipment operators and mine management to guide the discussion.
For the focus groups and semi-structured interviews, NIOSH will collect basic demographic information including years of mining experience, years of experience with haul trucks/front end loaders, and models of haul trucks/front end loaders operated most often in the past year. The semi-structured interviews and focus groups will be audio recorded for further analysis of the discussion. The semi-structured interviews will last no longer than 60 minutes and the focus groups will last no longer than 90 minutes.
The second study aims to identify changes in tread (wear) on the work boot outsoles and other outsole characteristics that will be used in further analysis to develop guidelines for work boot replacement based on measureable features of boot outsoles. This information will also be used in further analysis to determine desirable and undesirable features of work boots based on mine characteristics or job activities. Most mining companies replace footwear at a pre-determined interval or based on appearance and comfort (Chiou, Bhattacharya, & Succop, 1996) with little knowledge of the actual condition of the boot outsole and its influence on the likelihood of a STF incident. Although there have been attempts to quantify shoe outsole wear in industrial work when the shoe was ready for disposal (Chiou et al., 1996), there is a lack of knowledge in the mining industry on how quickly the outsoles of work boots wear, what sorts of wear occur, and how wear patterns influence the likelihood of a STF.
For the longitudinal study, NIOSH will provide participants with a pair of new work boots of their choice, in accordance with mine requirements and policies. Afterwards, participants will complete a preliminary survey and provide basic demographic information, details of their current work boots, and details of STF incidents in the past 3 months. Participants will be requested to wear the supplied boots at work and treat the boots as they would any pair of boots they would wear at work.
NIOSH researchers will scan the boot outsoles longitudinally, at 2 to 3 month intervals for the length of the study. To better understand wear patterns and risks, participants will complete an on-going survey that records hours worked, locations commonly visited, and tasks performed along with details of any near miss or STF event. These self-reports will be collected via survey on a bi-weekly basis. Participants will be offered multiple modalities to respond to the survey (in-person, on paper, over the telephone, via email or using an online survey) to increase response rates. When a participant feels their boots need to be replaced (or when the end of the two-year tracking period has been reached), they will complete a final survey assessing why the boots were at the end of their life and will return their boots to NIOSH researchers for further analysis.
For the cross-sectional study, participants' current work boots will be scanned and participants will complete the preliminary survey that includes basic demographic information, details of current work boots, and details of STF events in the past three months.
The results of these research studies will have very different applications, but one goal: Reducing the risks of STF accidents at surface mining facilities. The results of the ingress/egress study will help identify features of the ingress/egress system that may lead to STF accidents so that they can be made safer by the manufacturers and to allow mining companies to make better purchasing decisions and encourage the acquisition of systems with better slip and fall protection. The results of the boot outsole wear study will be used to inform mine policy and practices by providing miners and mine managers with the knowledge to determine when to replace footwear based on measurable features of the boot outsoles.
The total estimated burden hours are 643. There is no cost to the respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC) in the Department of Health and Human Services (HHS) announces the opening of a docket to obtain public comment on the draft CDC Guideline for Prescribing Opioids for Chronic Pain (Guideline). The Guideline provides recommendations regarding initiation or continuation of opioids for chronic pain; opioid selection, dosage, duration, follow-up, and discontinuation; and assessment of risk and addressing harms of opioid use. The Guideline is intended to be used by primary care providers (
Written comments must be received on or before January 13, 2016.
You may submit comments, identified by Docket No. CDC-2015-0112 by any of the following methods:
•
•
Arlene I. Greenspan, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, 4770 Buford Highway NE., Mailstop F-63, Atlanta, GA 30341; Telephone: 770-488-4696.
CDC developed the draft Guideline to provide recommendations about opioid prescribing for primary care providers who are treating adult patients with chronic pain in outpatient settings, outside of active cancer treatment, palliative care, and end-of-life care. The draft Guideline summarizes scientific knowledge about the effectiveness and risks of long-term opioid therapy, and provides recommendations for when to initiate or continue opioids for chronic pain; opioid selection, dosage, duration, follow-up, and discontinuation; and assessing risk and addressing harms of opioid use. The draft Guideline identifies important gaps in the literature where further research is needed.
To develop the recommendations, CDC conducted a systematic review on benefits and harms of opioids and developed the draft Guideline using the Grading of Recommendations Assessment, Development, and Evaluation (GRADE) framework. CDC drafted recommendations and consulted with experts on the evidence to inform the recommendations. CDC hosted webinars in September 2015 and also provided opportunities for stakeholder and peer review of the draft Guideline. The Guideline is not a federal regulation; adherence to the Guideline will be voluntary. For additional information on prescription drug overdose, please visit
The docket contains the following supporting and related materials to help inform public comment: The Guideline; the Clinical Evidence Review Appendix; the Contextual Evidence Review Appendix; and three documents that comprise the Comment Summaries and CDC Responses (Constituent Comment Summary, Peer Review Summary, and Stakeholder Review Group Summary). The Clinical Evidence Review Appendix and the Contextual Evidence Review Appendix include primary evidence, studies, and data tables that were used by CDC to develop the recommendations in the Guideline. The Constituent Comment Summary reflects input obtained in response to webinars hosted on September 16 and September 17, 2015, during which CDC shared an overview of the development process and draft recommendation statements. The Stakeholder Review Group Summary also reflects input obtained from stakeholders (comprised of professional and community organizations) following their review of a prior draft of the Guideline. Finally, the Peer Review Summary reflects input obtained from three scientific peer
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces, the following meeting of the aforementioned committee:
The Board of Scientific Counselors makes recommendations regarding policies, strategies, objectives, and priorities; and reviews progress toward injury prevention goals and provides evidence in injury prevention-related research and programs. The Board also provides advice on the appropriate balance of intramural and extramural research, the structure, progress and performance of intramural programs. The Board is designed to provide guidance on extramural scientific program matters, including the: (1) Review of extramural research concepts for funding opportunity announcements; (2) conduct of Secondary Peer Review of extramural research grants, cooperative agreements, and contracts applications received in response to the funding opportunity announcements as it relates to the Center's programmatic balance and mission; (3) submission of secondary review recommendations to the Center Director of applications to be considered for funding support; (4) review of research portfolios, and (5) review of program proposals.
CDC is also publishing a related notice in today's
Agenda items are subject to change as priorities dictate.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by February 12, 2016.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
2.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by January 13, 2016.
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395-5806 or Email:
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
To aid in understanding levels of awareness and customer services needs associated with the SHOP associated with the Exchanges established by the Affordable Care Act, CMS will engage in collecting primary qualitative and quantitative research from Exchange target audiences. These surveys are part of a broader data collection effort designed to support the program goal to improve customer satisfaction for people and small businesses that are eligible for coverage through the SHOP. The CMS has designed three surveys to target different audiences, specifically agents and brokers, employers, and employees.
The following is the hour of burden estimate for this information collection:
Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection. Email address:
OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the
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 Artair Mallett at 301-796-9638, 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).
Office of the Secretary, HHS.
Notice.
In compliance with section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, has submitted an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB) for review and approval. The ICR is for a new collection. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public on this ICR during the review and approval period.
Comments on the ICR must be received on or before January 13, 2016.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the Information Collection Request Title and document identifier HHS-OS-0990-New-30D for reference.
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This document provides notice to customs brokers that the annual user fee of $138 that is assessed for each permit held by a broker, whether it may be an individual, partnership, association, or corporation, is due by February 26, 2016.
Payment of the 2016 Customs Broker User Fee is due by February 26, 2016.
Julia Peterson, Broker Management Branch, Office of International Trade, (202) 863-6601.
Pursuant to section 111.96 of title 19 of the Code of Federal Regulations (19 CFR 111.96(c)), U.S. Customs and Border Protection (CBP) assesses an annual user fee of $138 for each customs broker district and national permit held by an individual, partnership, association, or corporation. CBP regulations provide that this fee is payable for each calendar year in each broker district where the broker was issued a permit to do business by the due date.
As required by 19 CFR 111.96, CBP must provide notice in the
Federal Emergency Management Agency, DHS.
Final notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The effective date of April 5, 2016 which has been established for the
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
I. Watershed-based studies:
II. Non-watershed-based studies:
Federal Emergency Management Agency, DHS.
Final notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The effective date of March 16, 2016, which has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
I. Watershed-based studies:
II. Non-watershed-based studies:
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Title 44, Part 65 of the Code of Federal Regulations (44 CFR part 65). The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice of availability.
This document provides notice of the availability of the final policy, Recovery Policy 9525.7,
This policy is effective November 19, 2015.
This final policy is available online at
William Roche, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472-3100, 202-646-3834.
This policy provides guidance on eligible labor costs for an applicant's permanent, temporary, and contract employees who perform emergency work (Category A and Category B). Changes to this final policy from the previous version are as follows: Additional authority cited in section V; the addition of a definitions section (section VII) to define terms used in the policy; revisions to the policy section (section VIII) that establish requirements for reimbursement based on predisaster labor policies; a clarification citing the authority for mutual aid agreements to which the Recipient/Subrecipient must comply; provides flexibility for reimbursement of costs for personnel that preposition assets prior to an event to support the performance of eligible emergency work; deletes “standby time” as an ineligible cost; and addresses the issue of 24-hour work shifts for firefighters and other personnel performing emergency work when supported and determined reasonable. FEMA received one comment on the proposed policy.
42 U.S.C. 5121-5207 and implementing regulations of 44 CFR part 206.
Federal Emergency Management Agency, DHS.
Final notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The effective date of April 19, 2016 which has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
I. Non-watershed-based studies:
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications for recovery permits to conduct activities with the purpose of enhancing the survival of endangered species. The Endangered Species Act of 1973, as amended (Act), prohibits certain activities with endangered species unless a Federal permit allows such activity. The Act also requires that we invite public comment before issuing such permits.
To ensure consideration, please send your written comments by January 13, 2016.
Program Manager, Restoration and Endangered Species Classification, Ecological Services, U.S. Fish and Wildlife Service, Pacific Regional Office, 911 NE 11th Avenue, Portland, OR 97232-4181. Please refer to the permit number for the application when submitting comments.
Colleen Henson, Fish and Wildlife Biologist, at the above address, or by telephone (503-231-6131) or fax (503-231-6243).
The Act (16 U.S.C. 1531
A permit granted by us under section 10(a)(1)(A) of the Act authorizes the permittee to conduct activities (including take or interstate commerce) with respect to U.S. endangered or threatened species for scientific
We invite local, State, and Federal agencies and the public to comment on the following applications. Please refer to the permit number for the application when submitting comments.
Documents and other information submitted with these applications are available for review by request from the Program Manager for Restoration and Endangered Species Classification at the address listed in the
Applicant: Assistant Regional Director, Ecological Services, Fish and Wildlife Service, Pacific Region, Portland, Oregon.
The applicant requests a permit amendment to allow Service employees and their designated agents to remove and reduce to possession (collect plants and their parts) the following Micronesian plant species and to take the following Micronesian animal species:
The purpose of these activities is to carry out recovery activities for scientific purposes or for enhancing the species' propagation or survival in Guam and the Commonwealth of the Northern Marianas Islands.
Applicant: U.S. Army Garrison, Pohakuloa Training Area, Hilo, Hawaii.
The applicant requests a permit renewal to remove and reduce to possession (collect plants and their parts)
Applicant: Marguerite Butler-Higa, University of Hawaii, Honolulu, Hawaii.
The applicant requests a new recovery permit renewal to take (capture, mark release, and collect bio-samples) blackline Hawaiian damselfly (
All comments and materials we receive in response to this request will be available for public inspection, by appointment, during normal business hours at the address listed in the
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.
We provide this notice under section 10 of the Act (16 U.S.C. 1531
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the liquor control ordinance of the Enterprise Rancheria of Maidu Indians of California. The liquor control statute regulates and controls the possession, sale, manufacture, and distribution of alcohol in conformity with the laws of the State of California.
This code shall become effective December 14, 2015.
Ms. Harley Long, Tribal Government Officer, Pacific Regional Office, Bureau of Indian Affairs, 2800 Cottage Way, Sacramento, California 95825, Telephone: (916) 978-6000, Fax: (916) 978-6099; or Ms. Laurel Iron Cloud, Chief, Division of Tribal Government Services, Office of Indian Services, Bureau of Indian Affairs, 1849 C Street NW., MS-4513-MIB, Washington, DC 20240, Telephone: (202) 513-7641.
Pursuant to the Act of August 15, 1953, Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that the Enterprise Rancheria of Maidu Indians of California Tribal Council duly adopted by Resolution the Enterprise Rancheria of Maidu Indians of California Liquor Control Statute by Resolution No. 15-05 on April 10, 2015.
This Statute is enacted pursuant to the Act of August 15, 1953 (Pub. L. 83-277, 67 Stat. 586, 18 U.S.C. 1161) and by powers vested in the Tribal Council of the Estom Yumeka Maidu Tribe of the Enterprise Rancheria (“Tribal Council”) to develop, adopt and enforce statutes as authorized under Article VI, Section 3 of the Constitution of the Enterprise Rancheria—Estom Yumeka Maidu, approved May 5, 1996 and revised as of October 29, 2003.
The purpose of this Statute is to regulate and control the possession, sale, manufacture and distribution of liquor within Tribal Trust Lands, in order to permit alcohol sales by tribally owned and operated enterprises and private lessees, and at tribally approved special events. Enactment of a liquor control statute will help provide a source of revenue for the continued operation of the tribal government, the delivery of governmental services, and the economic viability of tribal enterprises.
This Statute shall be known and cited as the “Liquor Control Statute.”
This Statute shall apply to all lands now or in the future under the governmental authority of the Tribe, including Tribal Trust Lands.
By adopting this Statute, the Tribe hereby regulates the sale, manufacturing, distribution, and consumption of liquor while ensuring that such activity conforms with all applicable laws of the State of California as required by 18 U.S.C. 1161 and the United States.
The Tribal Council enacts this Statute, based upon the following findings:
(a) The distribution, possession, consumption and sale of liquor on the Tribe's Reservation is a matter of special concern to the Tribe.
(b) The Tribe is the beneficial owner of Tribal Trust Lands, upon a portion of which the Tribe plans to construct and operate a gaming facility and related entertainment and lodging facilities.
(c) The Tribe's gaming facility will serve as an integral and indispensable part of the Tribe's economy, providing revenue to the Tribe's government and employment to tribal citizens and others in the local community.
(d) Federal law, as codified at 18 U.S.C. 1154 and 1161, currently prohibits the introduction of liquor into Indian country, except in accordance with State law and the duly enacted law of the Tribe.
(e) The Tribe recognizes the need for strict control and regulation of liquor transactions on Tribal Trust Lands because of potential problems associated with the unregulated or inadequate regulated sale, possession, distribution, and consumption of liquor.
(f) Regulating the possession, sale, distribution and manufacture of liquor within Tribal Trust Lands is also consistent with the Tribe's interest in ensuring the peace, safety, health, and general welfare of the Tribe and its citizens.
As used in this Statute, the terms below are defined as follows:
(a) Alcohol means ethyl alcohol, hydrated oxide of ethyl, or spirit of wine, in any form, and regardless of source or the process used for its production.
(b) Alcoholic beverage means all alcohol, spirits, liquor, wine, beer and any liquid or solid containing alcohol, spirits, liquor, wine, or beer, and which contains one-half of one percent or more of alcohol by volume and that is fit for human consumption, either alone or when diluted, mixed, or combined with any other substance(s).
(c) Compact means a Tribal-State compact between the State and the Tribe that governs the conduct of class III gaming activities on that portion of
(d) License means, unless otherwise stated, a license issued by the Tribe in accordance with this Statute.
(e) Liquor means any alcoholic beverage, as defined under this Section.
(f) Person means any individual or entity, whether Indian or non-Indian, receiver, assignee, trustee in bankruptcy, trust, estate, firm, corporation, partnership, joint corporation, association, society, or any group of individuals acting as a unit, whether mutual, cooperative, fraternal, non-profit or otherwise, and any other Indian tribe, band or group. The term shall also include the businesses of the Tribe.
(g) Sale and sell means the transfer for consideration of any kind, including by exchange or barter.
(h) Secretary means the Secretary of the United States Department of the Interior.
(i) State means the State of California.
(j) Tribal Trust Lands means and includes all lands held by the United States in trust for the Tribe now or in the future.
(k) Tribe means the Estom Yumeka Maidu Tribe of the Enterprise Rancheria, a federally recognized Indian tribe, listed in the
The introduction and possession of alcoholic beverages shall be lawful within Tribal Trust Lands; provided that such introduction or possession is in conformity with the laws of the State.
The sale of alcoholic beverages shall be lawful within Tribal Trust Lands; provided that such sales are in conformity with the laws of the State and are made pursuant to a license issued by the Tribe.
The manufacture of beer and wine shall be lawful within Tribal Trust Lands, provided that such manufacture is in conformity with the laws of the State and pursuant to a license issued by the Tribe.
The legal age for possession or consumption of alcohol within Tribal Trust Lands shall be the same as that of the State, which is currently 21 years. No person under the age of 21 years shall purchase, possess or consume any alcoholic beverage. If there is any conflict between State law and the terms of the Compact, if any, regarding the age limits for alcohol possession or consumption, the age limits in the Compact shall govern for purposes of this Statute.
The Tribal Council shall have the power to establish procedures and standards for tribal licensing of liquor sales within Tribal Trust Lands, including the setting of a license fee schedule, and shall have the power to publish and enforce such standards; provided that no tribal license shall issue except upon showing of satisfactory proof that the applicant is duly licensed by the State. The fact that an applicant for a tribal license possesses a license issued by the State shall not provide the applicant with an entitlement to a tribal license. The Tribal Council may in its discretion set standards which are more, but in no case less, stringent than those of the State.
The Tribal Council shall have the power to develop, enact, promulgate and enforce regulations as necessary for the enforcement of this Statute and to protect the public health, welfare and safety of the Tribe, provided that all such regulations shall conform to and not be in conflict with any applicable tribal, federal or state law. Regulations enacted pursuant to this Statute may include provisions for suspension or revocation of tribal liquor licenses, reasonable search and seizure provisions, and civil and criminal penalties for violations of this Statute to the full extent permitted by federal law and consistent with due process.
Tribal law enforcement personnel and security personnel duly authorized by the Tribal Council shall have the authority to enforce this Statute by confiscating any liquor sold, possessed, distributed, manufactured or introduced within Tribal Trust Lands in violation of this Statute or of any regulations duly adopted pursuant to this Statute.
The Tribal Council shall have the exclusive jurisdiction to hold hearings on violations of this Statute and any procedures or regulations adopted pursuant to this Statute; to promulgate appropriate procedures governing such hearings; to determine and enforce penalties or damages for violations of this Statute; and to delegate to a subordinate hearing officer or panel the authority to take any or all of the foregoing actions on its behalf.
Nothing contained in this Statute is intended to, nor does in any way, limit or restrict the Tribe's ability to impose any tax upon the sale or consumption of alcohol. The Tribe retains the right to impose such taxes by appropriate statute to the full extent permitted by federal law.
Nothing contained in this Statute is intended to, nor does in any way, limit, alter, restrict, or waive the sovereign immunity of the Tribe or any of its agencies, agents or officials from unconsented suit or action of any kind.
All acts and transactions under this Statute shall be in conformity with the Compact, if any, and laws of the State to the extent required by 18 U.S.C. 1161 and with all Federal laws regarding alcohol in Indian Country.
This Statute shall be effective as of the date on which the Secretary certifies this Statute and publishes the same in the
All prior enactments of the Tribal Council, including tribal resolutions, policies, regulations, or statutes pertaining to the subject matter set forth in this Statute are hereby rescinded.
This Statute may only be amended pursuant to an amendment duly enacted by the Tribal Council and certification by the Secretary and publication in the
If any part or provision of this Statute is held invalid, void, or unenforceable by a court of competent jurisdiction, such adjudication shall not be held to render such provisions inapplicable to other persons or circumstances. Further, the remainder of the Statute shall not be affected and shall continue to remain in full force and effect.
Bureau of Indian Affairs, Interior.
Notice of request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Bureau of Indian Affairs (BIA) is seeking comments on the renewal of Office of Management and Budget (OMB) approval for the collection of information for Electrical Service Application authorized by OMB Control Number 1076-0021 and Water Request authorized by OMB Control Number 1076-0141. Both of these information collections expire March 31, 2016.
Submit comments on or before February 12, 2016.
You may submit comments on the information collection to Yulan Jin, Chief, Division of Water and Power, Office of Trust Services, Mail Stop 4655—MIB, 1849 C Street NW., Washington, DC 20240; telephone: (202) 219-0941 or email:
Yulan Jin, telephone: (202) 219-0941 or email:
The BIA owns, operates, and maintains three electric power utilities that provide a service to the end user. The BIA also owns, operates, and maintains 15 irrigation projects that provide a service to the end user. To be able to properly bill for the services provided, the BIA must collect customer information to identify the individual responsible for repaying the government the costs of delivering the service, and billing for those costs. Additional information necessary for providing the service is the location of the service delivery. The Debt Collection Improvement Act of 1996 (DCIA) requires that certain information be collected from individuals and businesses doing business with the government. This information includes the taxpayer identification number for possible future use to recover delinquent debt. To implement the DCIA requirement to collect customer information, the BIA has included a section concerning the collection of information in its regulations governing its electrical power utilities (25 CFR 175) and in its regulations governing its irrigation projects (25 CFR 171).
The BIA requests your comments on this collection concerning: (a) The necessity of this information collection for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) The accuracy of the agency's estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used; (c) Ways we could enhance the quality, utility, and clarity of the information to be collected; and (d) Ways we could minimize the burden of the collection of the information on the respondents.
Please note that an agency may not conduct or sponsor, and an individual need not respond to, a collection of information unless it has a valid OMB Control Number.
It is our policy to make all comments available to the public for review at the location listed in the
Section 175.6 and 175.22 of 25 CFR part 175, Indian electric power utilities, specifies the information collection requirement. Power consumers must apply for electric service. The information to be collected includes: Name; electric service location, and other operational information identified in the local administrative manuals. All information is collected from each electric power consumer.
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the liquor control statute of the North Fork Rancheria of Mono Indians of California. The liquor control statute regulates and controls the possession, sale, manufacture, and distribution of alcohol in conformity with the laws of the State of California for the purpose of generating new Tribal revenues.
This code shall become effective December 14, 2015.
Ms. Harley Long, Tribal Government Officer, Pacific Regional Office, Bureau of Indian Affairs, 2800 Cottage Way, Sacramento, California 95825, Telephone: (916) 978-6000, Fax: (916) 978-6099; or Ms. Laurel Iron Cloud, Chief, Division of Tribal Government Services, Office of Indian Services, Bureau of Indian Affairs, 1849 C Street NW., MS-4513-MIB, Washington, DC 20240, Telephone: (202) 513-7641.
Pursuant to the Act of August 15, 1953, Pub. Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that the North Fork Rancheria of Mono Indians of California Tribal Council duly adopted by Resolution the North Fork Rancheria of Mono Indians of California Liquor Control Statute by Resolution No. 14-32 dated July 07, 2014.
This Statute is enacted pursuant to the Act of August 15, 1953 (Pub. L. 83-277, 67 Stat. 586, 18 U.S.C. 1161) and by powers vested in the Tribal Council of the North Fork Rancheria (“Tribal Council”) to develop, adopt and enforce statutes as authorized under Article VI, Section 1 of the Constitution of the North Fork Rancheria, adopted May 18, 1996.
The purpose of this Statute is to regulate and control the possession, sale, manufacture and distribution of liquor within Tribal Trust Lands, in order to permit alcohol sales by tribally owned and operated enterprises and private lessees, and at tribally approved special events. Enactment of a liquor control statute will help provide a source of revenue for the continued operation of the tribal government, the delivery of governmental services, and the economic viability of tribal enterprises.
This Statute shall be known and cited as the “Liquor Control Statute.”
This Statute shall apply to all lands now or in the future under the governmental authority of the Tribe, including Tribal Trust Lands.
By adopting this Statute, the Tribe hereby regulates the sale, manufacturing, distribution, and consumption of liquor while ensuring that such activity conforms with all applicable laws of the State of California as required by 18 U.S.C. § 1161 and the United States.
The Tribal Council enacts this Statute, based upon the following findings:
(a) The distribution, possession, consumption and sale of liquor on the Tribe's Reservation is a matter of special concern to the Tribe.
(b) The Tribe is the beneficial owner of Tribal Trust Lands, upon which the Tribe plans to construct and operate a gaming facility and related entertainment and lodging facilities.
(c) The Tribe's gaming facility will serve as an integral and indispensable part of the Tribe's economy, providing revenue to the Tribe's government and employment to tribal citizens and others in the local community.
(d) Federal law, as codified at 18 U.S.C. 1154 and 1161, currently prohibits the introduction of liquor into Indian country, except in accordance with State law and the duly enacted law of the Tribe.
(e) The Tribe recognizes the need for strict control and regulation of liquor transactions on Tribal Trust Lands because of potential problems associated with the unregulated or inadequate regulated sale, possession, distribution, and consumption of liquor.
(f) Regulating the possession, sale, distribution and manufacture of liquor within Tribal Trust Lands is also consistent with the Tribe's interest in ensuring the peace, safety, health, and general welfare of the Tribe and its citizens.
(g) Tribal control and regulation of liquor on Tribal Trust Lands is consistent with the Tribe's custom and tradition of controlling the possession and consumption of liquor on tribal lands and at tribal events.
(h) The purchase, distribution, and sale of liquor on Tribal Trust Lands shall take place only at duly licensed (i) tribally owned enterprises, (ii) other enterprises operating pursuant to a lease with the Tribe, and (iii) tribally-sanctioned events.
(i) The sale or other commercial manufacture or distribution of liquor on Tribal Trust Lands, other than sales, manufacture, and distributions made in strict compliance with this Statute, is detrimental to the health, safety, and
As used in this Statute, the terms below are defined as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
The introduction and possession of alcoholic beverages shall be lawful within Tribal Trust Lands; provided that such introduction or possession is in conformity with the laws of the State.
The sale of alcoholic beverages shall be lawful within Tribal Trust Lands; provided that such sales are in conformity with the laws of the State and are made pursuant to a license issued by the Tribe.
The manufacture of beer and wine shall be lawful within Tribal Trust Lands, provided that such manufacture is in conformity with the laws of the State and pursuant to a license issued by the Tribe.
The legal age for possession or consumption of alcohol within Tribal Trust Lands shall be the same as that of the State, which is currently 21 years. No person under the age of 21 years shall purchase, possess or consume any alcoholic beverage. If there is any conflict between State law and the terms of the Compact regarding the age limits for alcohol possession or consumption, the age limits in the Compact shall govern for purposes of this Statute.
The Tribal Council shall have the power to establish procedures and standards for tribal licensing of liquor sales within Tribal Trust Lands, including the setting of a license fee schedule, and shall have the power to publish and enforce such standards; provided that no tribal license shall issue except upon showing of satisfactory proof that the applicant is duly licensed by the State. The fact that an applicant for a tribal license possesses a license issued by the State shall not provide the applicant with an entitlement to a tribal license. The Tribal Council may in its discretion set standards which are more, but in no case less, stringent than those of the State.
The Tribal Council shall have the power to develop, enact, promulgate, and enforce regulations as necessary for the enforcement of this Statute and to protect the public health, welfare, and safety of the Tribe, provided that all such regulations shall conform to and not be in conflict with any applicable tribal, Federal, or State law. Regulations enacted pursuant to this Statute may include provisions for suspension or revocation of tribal liquor licenses, reasonable search and seizure provisions, and civil and criminal penalties for violations of this Statute to the full extent permitted by Federal law and consistent with due process.
Tribal law enforcement personnel and security personnel duly authorized by the Tribal Council shall have the authority to enforce this Statute by confiscating any liquor sold, possessed, distributed, manufactured, or introduced within Tribal Trust Lands in violation of this Statute or of any regulations duly adopted pursuant to this Statute.
The Tribal Council shall have the exclusive jurisdiction to hold hearings on violations of this Statute and any procedures or regulations adopted pursuant to this Statute; to promulgate appropriate procedures governing such hearings; to determine and enforce penalties or damages for violations of this Statute; and to delegate to a subordinate hearing officer or panel the authority to take any or all of the foregoing actions on its behalf.
Nothing contained in this Statute is intended to, nor does in any way, limit or restrict the Tribe's ability to impose any tax upon the sale or consumption of alcohol. The Tribe retains the right to impose such taxes by appropriate statute to the full extent permitted by Federal law.
Nothing contained in this Statute is intended to, nor does in any way, limit, alter, restrict, or waive the sovereign immunity of the Tribe or any of its agencies, agents or officials from unconsented suit or action of any kind.
All acts and transactions under this Statute shall be in conformity with the Compact and laws of the State to the extent required by 18 U.S.C. 1161 and with all Federal laws regarding alcohol in Indian Country.
This Statute shall be effective as of the date on which the Secretary of the Interior certifies this Statute and publishes the same in the
All prior enactments of the Tribal Council, including tribal resolutions, policies, regulations, or statutes pertaining to the subject matter set forth in this Statute are hereby rescinded.
This Statute may only be amended pursuant to an amendment duly enacted by the Tribal Council and certification by the Secretary of the Interior and publication in the
If any part or provision of this Statute is held invalid, void, or unenforceable by a court of competent jurisdiction, such adjudication shall not be held to render such provisions inapplicable to other persons or circumstances. Further, the remainder of the Statute shall not be affected and shall continue to remain in full force and effect.
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 (RAC) will meet as indicated below.
The RAC will meet on January 21, 2016, at the Roswell Field Office, 2909 West 2nd Street, Roswell, New Mexico, 88201, from 9 a.m.-12:30 p.m. The public may send written comments to the RAC at the BLM Pecos District, 2909 West 2nd Street, Roswell, New Mexico, 88201.
Howard Parman, Pecos District Office, Bureau of Land Management, 2909 West 2nd Street, Roswell, New Mexico 88201, 575-627-0212. 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 advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management in the BLM's Pecos District. Planned agenda items include: Election of a new chairman; report on the status of the Carlsbad plan revision; a discussion of the presentations made at the previous meeting by both BLM staff and cave interests regarding the BLM's management of cave in regards to containing the spread of White Nose Syndrome; a report on the status of the activity plan for the Lesser Prairie-Chicken Area of Environmental Concern (ACEC); and a report from the ACEC Grazing Subcommittee, including the research being conducted at the ACEC.
All RAC meetings are open to the public. There will be a half-hour public comment period at 9:30 a.m. for any interested members of the public who wish to address the RAC. Depending on the number of persons wishing to speak and time available, the time for individual comments may be limited.
National Park Service, Interior.
Public notice.
Pursuant to the terms of existing concession contracts, public notice is hereby given that the National Park Service intends to request a continuation of visitor services for the periods specified below.
Effective January 1, 2016.
Brian Borda, Chief, Commercial Services Program, National Park Service, 1201 Eye Street NW., 11th Floor, Washington, DC 20005, Telephone: 202-513-7156.
The contracts listed below have been extended to the maximum allowable under 36 CFR 51.23. Under the provisions of the respective concession contracts and pending the completion of the public solicitation of a prospectus for a new concession contract, the National Park Service authorizes continuation of visitor services for a period not-to-exceed 1 year under the terms and conditions of the current contract as amended. The continuation of operations does not affect any rights with respect to selection for award of a new concession contract. The publication of this notice merely reflects the intent of the National Park Service but does not bind the National Park Service to continue any of the contracts listed below.
National Park Service, Interior.
Notice of application.
An application for a right-of-way across the Western (Kobuk River) unit of Gates of the Arctic National Preserve has been filed by the Alaska Industrial Development and Export Authority with the National Park Service, pursuant to and consistent with section 1104(b) and (c) of the Alaska National Interest Lands Conservation Act (Pub. L. 96-487). In accordance with section 201(4)(c) of the Alaska National Interest Lands Conservation Act, the National Park Service is giving notice and providing for a thirty-day period for other parties to apply for access across the preserve.
Potential applicants for such access need to contact the National Park Service (see the contact information provided below) to obtain the requirements for filing an application for access.
Applications must be received by or postmarked by January 13, 2016.
Superintendent, Gates of the Arctic National Park and Preserve, 4175 Geist Road, Fairbanks, Alaska 99709.
Greg Dudgeon, Superintendent, Gates of the Arctic National Park and Preserve, 4175 Geist Road, Fairbanks, Alaska 99709. Telephone: 907-457-5752. Email:
National Park Service, Interior.
Notice of Execution of Agreement and Establishment of Park.
The National Park Service (NPS) announces that the Secretary of the Interior and the Secretary of Energy have entered into an agreement governing the administration of facilities, land, or interests in land under the jurisdiction of the Department of Energy (DOE) that are to be initially included in the Manhattan Project National Historical Park (Park) and setting out the specific responsibilities of each of the Secretaries with regard to the Park. This agreement satisfies the legal requirements to establish the Park. This new unit of the National Park System is located in Oak Ridge, Tennessee; Hanford, Washington; and Los Alamos, New Mexico.
The agreement governing the management of Park was signed by the Secretary of the Interior and the Secretary of Energy on November 10, 2015. The law directing the establishment of the Park requires that notice of the establishment of the Park be published in the
The Memorandum of Agreement between the Department of the Interior and the Department of Energy and the associated boundary map are available for public review on the NPS's Planning, Environment and Public Comment Web site at:
Victor Knox, Associate Director, Park Planning, Facilities, and Lands by phone at 202-208-3264.
Section 3039 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (Pub. L. 113-291) includes specific provisions relating to the establishment of this unit of the National Park System as follows:
a. Section 3039(d) of Public Law 113-291 requires the Secretary of the Interior and the Secretary of Energy, not later than one year after the date of enactment of the act (December 19, 2014), to enter into an agreement governing the administration of facilities, land, or interests in land under the DOE's jurisdiction that are to be included in the Park and setting out the specific responsibilities of each of the Secretaries with regard to the Park.
b. Section 3039(e)(2) of Public Law 113-291 also requires the Secretary of the Interior to publish in the
Beginning in February 2015 representatives of the Secretary of the Interior and the Secretary of Energy met to discuss a framework for managing the Park and to determine which of the eligible areas identified in the authorizing legislation would be initially included in the Park. Over the course of several months the agency representatives visited all three DOE locations, toured the eligible areas, and met with interested members of the public in each location. As a result of those discussions, tours, and meetings, the Secretaries determined that the areas shown on the map published with this notice would be initially included in the Park. On July 28, 2015, the draft agreement and a proposed boundary map were posted on the NPS's public park-planning Web site, and members of the public were allowed 30 days to comment on them. The agency representatives then analyzed those comments and modified the draft agreement and the boundary map accordingly. Although the NPS and DOE recognize the historical significance of the other eligible areas identified in the authorizing legislation, those facilities either are not currently safe for visitation or are needed to support ongoing DOE mission work. They are therefore not included in the Park at this time; however, the agencies will periodically reevaluate them to determine if they can be included in the Park at a later date.
The Secretary of the Interior has determined that the execution of the agreement satisfies the legal requirements to establish this new unit of the National Park System. Accordingly, effective on the date of publication of this notice, the Park is established as a new unit of the National Park System and is subject to the laws and policies governing such units.
Section 3039 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, Public Law 113-291.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at EDIS,
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at USITC.
The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Server Technology, Inc. on December 8, 2015. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain rack mountable power distribution units. The complaint names as respondents Raritan Americas, Inc. of Somerset, NJ; Legrand North America of West Hartford, CT; and Legrand SA of France. The complainant requests that the Commission issue a limited exclusion order, cease and desist orders, and a bond upon respondents' alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3105”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
U.S. International Trade Commission
Correction of notice.
Correction is made to the deadline to submit statements on the
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 February 12, 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 Anita Scheddel, Program Analyst, Explosives Industry Programs Branch, 99 New York Ave. NE., Washington, DC 20226 at email:
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,
Overview of this information collection 1140-0073:
1.
2.
3.
Form number (if applicable): None.
Component: Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Department of Justice.
4.
Primary: Businesses and other non-profits.
Other (if applicable): None.
Abstract: ATF requires licensed manufacturers and importers and persons who manufacture or import explosives materials or ammonium nitrate to submit samples at the request of the Director.
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.
Millennium Challenge Corporation.
Notice.
In accordance with Section 610(b)(2) of the Millennium Challenge Act of 2003 (22 U.S.C. 7701-7718) as amended (the Act), and the heading “Millennium Challenge Corporation” of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2015, the Millennium Challenge Corporation (MCC) is publishing a summary of the Millennium Challenge Compact between the United States of America, acting through the Millennium Challenge Corporation, and the Kingdom of Morocco. Representatives of the United States Government and Morocco executed the Compact documents on November 30, 2015. The complete text of the Compact has been posted at
MCC has signed a five-year, $450 million compact with the Government of Morocco (GoM) aimed at reducing poverty through economic growth. The compact seeks to assist the GoM in addressing two major constraints to economic growth: Education quality and land productivity, with an approach and methodology that incorporate the core issues of government and public-private coordination.
Morocco was selected for compact eligibility in December 2012, and the subsequent constraints analysis identified (i) education quality; (ii) land policy and implementation (with qualitatively different issues for rural areas and industrial land); and (iii) governance, notably labor market regulations, taxes, and the judiciary system as binding constraints to economic growth and investment. In addition, the analysis identified the effectiveness of the Moroccan government's level of coordination as an
The land and education sectors represent binding constraints to growth and provide opportunities to develop policy responses to both the supply and demand for skilled labor. The compact directly addresses the root causes of these binding constraints, which are:
(1) Secondary education and workforce development systems that produce a supply of workers that do not adequately meet private sector skills demand, and
(2) Land policy and implementation that inhibit access to and productive uses of rural and industrial land, thus diminishing investment and consequent demand for labor.
By improving the policy and institutional environment, and creating models to engage the private sector, the two projects will address both the supply and demand sides of the labor market. Both projects support the shift from static, state-led systems to competitive, dynamic systems that engage the private sector and respond to market needs. Further, both projects take a targeted approach to developing and demonstrating new models, and building capacity so that those models can be replicated and scaled up post-compact.
The budget for the compact is $450 million, not including the contribution by the GoM of approximately $67.5 million or 15 percent of the U.S. contribution, allocated as follows (all figures are approximate due to rounding):
The Education and Training for Employability Project aims to increase the employability and employment rate of Moroccans by improving the quality and relevance of, and equitable access to, secondary education and workforce development programs in response to private sector needs. Given significant social and gender inequalities in Morocco, a concerted effort has been made to ensure that the Education and Training for Employability Project results in equitable outcomes for both girls and boys and reduces social, gender, and geographically-based inequalities.
The Land Productivity Project aims to increase land productivity in Morocco by enabling land markets to better respond to investor demand and by strengthening the enabling environment for investment
The Education and Training for Employability Project is comprised of two activities aimed at increasing the employability and employment rate of Moroccans by improving the quality and relevance of, and equitable access to, secondary education and workforce development programs in response to private sector needs.
MCC funding will also support the development, planning, and implementation of rigorous international and national assessments of student learning, and the utilization of assessment data to inform decisions for improving performance. MCC funding will additionally support the development and piloting of a new approach to school infrastructure and information technology operations and maintenance, through private sector performance contracts in these areas.
An MCC- and GoM-funded grant facility will support selected private sector-driven training centers by issuing grants for infrastructure, equipment, and technical assistance. Additionally, results-based incentive mechanisms, such as social impact bonds, will be used to support promising programs that provide integrated job placement services for women and at-risk urban youth. MCC funding will also support the development and implementation of rigorous impact evaluations to test other non-MCC funded promising labor market interventions.
The project aims to increase land productivity in Morocco by enabling land markets to better respond to investor demand and by strengthening the enabling environment for investment. To achieve this objective, MCC funding will support the following activities:
An economic rate of return (ERR) was calculated for each of the compact's projects. The costs of the Governance Activity, which is a critical national policy and institutional reform component that will support a land strategy and roadmap, as well as the long-term sustainability and impact of the project's other two activities, are included in the overall ERR for the Land Productivity Project.
The Compact is expected to benefit 2.2 million people over a twenty-year period.
10:00 a.m., Thursday, December 17, 2015.
Board Room, 7th Floor, Room 7047, 1775 Duke Street (All visitors must use Diagonal Road Entrance), Alexandria, VA 22314-3428.
Open.
1. Notice and Request for Comment, Regulatory Review in Accordance with the Economic Growth Regulatory Paperwork Reduction Act of 1996.
2. NCUA Rules and Regulations, Adding Share Insurance Coverage for Lawyers Trust Accounts and Other Similar Escrow Accounts.
10:45 a.m.
11:00 a.m., Thursday, December 17, 2015.
Board Room, 7th Floor, Room 7047, 1775 Duke Street, Alexandria, VA 22314-3428.
Closed.
1. Supervisory Action. Closed pursuant to Exemptions (8), (9)(i)(B), and (9)(ii).
2. Request under section 205(d) of the Federal Credit Union Act. Closed pursuant to Exemption (6).
Gerard Poliquin, Secretary of the Board, Telephone: 703-518-6304.
National Endowment for the Arts, National Foundation on the Arts and Humanities.
Notice of meetings.
Pursuant to the Federal Advisory Committee Act, as amended, notice is hereby given that 15 meetings of the Arts Advisory Panel to the National Council on the Arts will be held by teleconference.
All meetings are Eastern time and ending times are approximate:
National Endowment for the Arts, Constitution Center, 400 7th St. SW., Washington, DC, 20506.
Further information with reference to these meetings can be obtained from Ms. Kathy Plowitz-Worden, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC, 20506;
The closed portions of meetings are for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of February 15, 2012, these sessions will be closed to the public pursuant to subsection (c)(6) of section 552b of title 5, United States Code.
National Science Foundation.
Notice of permits issued under the Antarctic Conservation of 1978.
The National Science Foundation (NSF) is required to publish notice of permits issued under the Antarctic Conservation Act of 1978. This is the required notice.
Nature McGinn, ACA Permit Officer, Division of Polar Programs, Rm. 755, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230. Or by email:
On August 18, 2015 the National Science Foundation published a notice in the
National Science Foundation.
Notice of permits issued under the Antarctic Conservation of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish notice of permits issued under the Antarctic Conservation Act of 1978. This is the required notice.
Nature McGinn, ACA Permit Officer, Division of Polar Programs, Rm. 755, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230. Or by email:
On November 6, 2015 the National Science Foundation published a notice in the
Nuclear Regulatory Commission.
License renewal and record of decision; issuance.
The U.S. Nuclear Regulatory Commission (NRC) has issued renewed facility operating license No. NPF-3 to FirstEnergy Nuclear Operating Company (FENOC or the licensee), the operator of the Davis-Besse Nuclear Power Station, Unit 1. Renewed facility operating license No. NPF-3 authorizes operation of Davis-Besse by the licensee at reactor core power levels not in excess of 2817 megawatts thermal, in accordance with the provisions of the Davis-Besse renewed license and technical specifications. In addition, the NRC has prepared a record of decision (ROD) that supports the NRC's decision to renew facility operating license No. NPF-3.
The license renewal of facility operating license No. NPF-3 was effective on December 8, 2015.
Please refer to Docket ID NRC-2010-0298 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
•
•
•
Richard Plasse, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555; telephone: 301-415-1427; email:
Notice is hereby given that the NRC has issued renewed facility operating license No. NPF-3 to FirstEnergy Nuclear Operating Company, the operator of Davis-Besse. Renewed facility operating license No. NPF-3 authorizes operation of Davis-Besse by the licensee at reactor core power levels not in excess of 2817 megawatts thermal, in accordance with the provisions of the Davis-Besse renewed license and technical specifications. The NRC's ROD that supports the NRC's decision to renew facility operating license No. NPF-3 is available in ADAMS under Accession No. ML15295A319. As discussed in the ROD and the final supplemental environmental impact statement (FSEIS) for Davis-Besse, Supplement 52 to NUREG-1437, “Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Davis-Besse Nuclear Power Station” dated April 2015 (ADAMS Accession No. ML15112A098 for Volume 1 and ML15113A187 for Volume 2), the NRC has considered a range of reasonable alternatives that included natural gas combined-cycle (NGCC), supercritical pulverized coal, combination of wind, solar, and NGCC, and the no action alternative. The ROD and FSEIS document the NRC decision for the environmental review that the adverse environmental impacts of license renewal for Davis-Besse are not so great that preserving the option of license renewal for energy planning decisionmakers would be unreasonable.
Davis-Besse, is a pressurized water reactor located in Carroll Township, Ottawa County, Ohio. The application for the renewed license, “License Renewal Application, Davis-Besse Nuclear Power Station,” dated August 30, 2010, as supplemented by letters dated through June 29, 2015 (ADAMS Accession No. ML15180A252), complied with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the NRC's regulations. As required by the Act and the NRC's regulations in Chapter 1 of title 10 of the
For further details with respect to this action, see: (1) FirstEnergy Nuclear Operating Company license renewal application for Davis-Besse Nuclear Power Station, Unit 1 dated August 20, 1010, as supplemented by letters dated through June 29, 2015; (2) the NRC's safety evaluation report published on September 3, 2013 (ADAMS Accession No. ML13248A267); (3) the NRC's supplemental safety evaluation report published on August 10, 2015 (ADAMS Accession No. ML15196A429); (4) the NRC's final environmental impact statement (NUREG-1437, Supplement 52), for Davis-Besse published in April 2014; and (5) the NRC's ROD.
For the Nuclear Regulatory Commission.
December 14, 21, 28, 2015, January 4, 11, 18, 2016.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of December 21, 2015.
There are no meetings scheduled for the week of December 28, 2015.
There are no meetings scheduled for the week of January 4, 2016.
There are no meetings scheduled for the week of January 11, 2016.
There are no meetings scheduled for the week of January 18, 2016.
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Denise McGovern at 301-415-0681 or via email at
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301-415-1969), or email
Pension Benefit Guaranty Corporation.
Notice of approval.
The Pension Benefit Guaranty Corporation has approved a request from Harrington Air Systems, LLC, and its sister company J.C. Cannistraro, LLC, for an exemption from the bond/escrow requirement of section 4204(a)(1) of the Employee Retirement Income Security Act of 1974, as amended, with respect to the Sheet Metal Workers National Pension Fund. A notice of the request for exemption was published on June 24, 2015 (80 FR 36366). The effect of this notice is to advise the public of the decision on the exemption request.
The non-confidential portions of the request for a variance and any PBGC response to the request may be obtained by writing to the Disclosure Division, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street NW., Washington, DC 20005-4026 or calling 202-326-4040 during normal business hours. (TTY and TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4040.)
Bruce Perlin (
Section 4204 of the Employee Retirement Income Security Act of 1974, as amended by the Multiemployer Pension Plan Amendments Act of 1980 (“ERISA” or “the Act”), provides that a complete or partial withdrawal of an employer from a multiemployer plan does not occur solely because, as a result of a bona fide arm's-length sale of assets to an unrelated party, the seller ceases covered operations or ceases to have an obligation to contribute for such operations, if the following conditions under section 4204(a)(1)(A)-(C), are met:
(A) The purchaser has an obligation to contribute to the plan with respect to the operations for substantially the same number of contributions base units for which the seller was obligated to contribute;
(B) the purchaser obtains a bond or places an amount in escrow, for a period of five plan years after the sale, equal to the greater of the seller's average required annual contribution to the plan for the three plan years preceding the year in which the sale occurred or the seller's required annual contribution for the plan year preceding the year in which the sale occurred; and
(C) the contract of sale provides that if the purchaser withdraws from the plan within the first five plan years beginning after the sale and fails to pay any of its liability to the plan, the seller shall be secondarily liable for the liability it would have had but for section 4204.
The bond or escrow described above would be paid to the plan if the purchaser withdraws from the plan or fails to make any required contributions to the plan within the first five plan years beginning after the sale. Additionally, section 4204(b)(1) provides that if a sale of assets is covered by section 4204, the purchaser assumes by operation of law the contribution record of the seller for the plan year in which the sale occurred and the preceding four plan years.
Section 4204(c) of ERISA authorizes the Pension Benefit Guaranty Corporation (“PBGC”) to grant individual or class variances or exemptions from the purchaser's bond/escrow requirement of section 4204(a)(1)(B) when warranted. The legislative history of section 4204 indicates a Congressional intent that the asset sale rules be administered in a manner that assures protection of the plan with the least practicable intrusion into normal business transactions. Senate Committee on Labor and Human Resources, 96th Cong., 2nd Sess., S.1076, The Multiemployer Pension Plan Amendments Act of 1980: Summary and Analysis of Considerations 16 (Comm. Print, April 1980); 128 Cong. Rec. S10117 (July 29, 1980). The granting of an exemption or variance from the bond/escrow requirement does not constitute a finding by PBGC that a particular transaction satisfies the other requirements of section 4204(a)(1).
Under PBGC's regulation on variances or exemptions from the requirements of section 4204(a)(1)(B) with respect to sales of assets (29 CFR part 4204), a request for a variance or waiver of the bond/escrow requirement under any of the tests established in the regulation (sections 4204.12 or 4204.13) must first be made to the plan in question. PBGC will consider a waiver request only if the plan denies the request because it does not satisfy the conditions of the regulatory tests or the parties assert that the financial information necessary to show satisfaction of one of the regulatory tests is privileged or confidential financial information within the meaning of “Exemption Four” of the Freedom of Information Act, 5 U.S.C. § 552(b)(4).
Under section 4204.22 of the regulation, the PBGC shall approve a request for a variance or exemption if it determines that approval of the request is warranted, based on the following reasons:
(1) The approval of a variance/exemption would more effectively or equitably carry out the purposes of Title IV of the Act; and
(2) the approval of a variance/exemption would not significantly increase the risk of financial loss to the plan.
Section 4204(c) of ERISA and section 4204.22(b) of the regulation require PBGC to publish a notice of the pendency of a request for a variance or exemption in the
On June 23, 2015, PBGC published a notice of the pendency of a request by Harrington Air Systems, LLC (“HAS”) and its sister company J.C. Cannistraro, LLC (“JCC”, and collectively with HAS, the “Buyer”) for an exemption from the bond/escrow requirement of section 4204(a)(1)(B) with respect to the purchase of Harrington Brothers Corporation (“HBC” or the “Seller”). According to the request, the Seller was obligated to contribute to the Sheet Metal Workers National Pension Fund (the “Fund”), a multiemployer defined benefit pension plan. According to the Buyer's representations, the Buyer acquired under an asset sale agreement effective February 24, 2014, most of the business assets of the Seller. The parties structured the transaction to comply with section 4204 of ERISA. HAS is an entity set up by JCC to effectuate the purchase of HBC's assets. In the request, the Buyer represents that HAS and JCC are businesses under common control pursuant to 26 CFR § 1.414(c)-2 and therefore treated as one employer under ERISA. Additionally, the Buyer represents, among other things, that:
1. Under the terms of the asset purchase agreement, the Buyer paid the Seller approximately $5.1 million in the form of an unsecured promissory note that may be adjusted post-closing based on the performance of certain construction contracts in place at the time of the transaction.
2. The Buyer is obligated to contribute to the Fund for the purchased operations for substantially the same contribution base units for which the Seller had an obligation to contribute.
3. The Seller has agreed to be secondarily liable for any withdrawal liability it would have had with regard to the sold operations (if not for § 4204) should the Buyer withdraw from the Fund within the five plan years following the sale and fail to pay withdrawal liability.
4. The estimated amount of unfunded vested benefits allocable to the Seller with respect to the operations sold is about $23.4 million.
5. The amount of the bond/escrow required under § 4204(a)(1)(B) is $1.68 million.
6. After the close of the transaction, the Buyer requested that the trustees of the Fund waive the bond/escrow requirements of ERISA § 4204. The Fund denied the request on the grounds that the Buyer did not satisfy the net income or net tangible assets tests under PBGC's regulations for an exemption from the bond/escrow requirement of § 4204(a)(1)(B).
7. To satisfy the net income test under 29 CFR 4204.13(a)(1), the Fund determined that the average annual net income required for the three-year period prior to the transaction needed to be approximately $440,000 greater than the amount reported.
8. The Buyer asserts that the three-year average net income of JCC was lowered due to an “aberrantly poor year” in the construction industry in Massachusetts in 2011. The Buyer states that JCC's average annual net income for the years between 2011-2014 was approximately $1 million more than what was required to meet the net income test under 29 CFR 4204.13(a)(1), and that its net income for the 3 years between 2012-2014 was approximately $1.5 million more than what was required.
9. The Buyer further asserts that, in denying the Buyer's request for a waiver, the Fund looked only at the average net income of JCC. It contends that aggregating the net incomes of JCC and HAS, two businesses under common control under 26 CFR 1.414(c)-2, shows that there “can be no serious argument that a waiver will create risk for the Fund, let alone substantial risk.”
10. The Buyer's request additionally states that a variance of the bond/escrow requirement in this instance furthers the purposes of Title IV of ERISA because Congress, in enacting Title IV, sought to minimize intrusions into normal business operations while protecting plans. The Buyer asserts that HBC had previously been a “struggling enterprise” and that the transaction has “resulted in a more stable and financially secure contributing employer to the Fund.”
Based on the facts of this case and the representations and statements made in connection with the request for an exemption, including JCC's updated 2014 financial information, PBGC has determined that an exemption from the bond/escrow requirement of section 4204(a)(1)(B) is warranted, in that it would more effectively carry out the purposes of Title IV of ERISA and would not significantly increase the risk of financial loss to the Plan. Therefore, the PBGC hereby grants the request for an exemption from the bond/escrow requirement.
The granting of a variance or an exemption from the bond/escrow requirement of section 4204(a)(1)(B) does not constitute a finding by the PBGC that the transaction satisfies the other requirements of section 4204(a)(1). The determination of whether the transaction satisfies such other requirements is a determination to be made by the Plan sponsor.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Parcel Select Contract 11 negotiated service agreement to the competitive product list. 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.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016-28 and CP2016-34 to consider the Request pertaining to the proposed Parcel Select Contract 11 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in
The Commission appoints Derrick D. Dennis to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-28 and CP2016-34 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Derrick D. Dennis is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than December 16, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Priority Mail Contract 160 negotiated service agreement to the competitive product list. 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.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016-29 and CP2016-35 to consider the Request pertaining to the proposed Priority Mail Contract 160 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than December 16, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Kenneth R. Moeller to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-29 and CP2016-35 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Kenneth R. Moeller is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than December 16, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes to list and trade shares of the following under NYSE Arca Equities Rule 8.600 (“Managed Fund Shares”): Cumberland Municipal Bond ETF. 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 Exchange proposes to list and trade shares (“Shares”) of the following under NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares:
The investment adviser to the Fund will be Virtus ETF Advisers LLC (the “Adviser”). The Fund's sub-adviser will be Cumberland Advisors Inc. (“Sub-Adviser”). Virtus ETF Solutions LLC will serve as the Fund's operational administrator. ETF Distributors LLC will serve as the distributor (the “Distributor”) of Fund Shares on an agency basis. The Bank of New York Mellon (the “Administrator”) will serve as the administrator, custodian, transfer agent and fund accounting agent for the Fund.
Commentary .06 to Rule 8.600 provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio.
According to the Registration Statement, the Fund will seek to provide a competitive level of current income exempt from federal income tax, while preserving capital. The Fund, under normal market conditions,
According to the Registration Statement, Municipal Bonds in which the Fund may invest include one or more of the following:
• General obligation bonds, which are typically backed by the full faith, credit, and taxing power of the issuer;
• revenue bonds, which are typically secured by revenues generated by the issuer;
• discount bonds, which may be originally issued at a discount to par value or sold at market price below par value;
• premium bonds, which are sold at a premium to par value;
• zero coupon bonds, which are issued at an original issue discount, with the full value, including accrued interest, paid at maturity; and
• private activity bonds, which are typically issued by or on behalf of local or state government for the purpose of financing the project of a private user.
The Fund will have no target duration for its investment portfolio, and the Sub-Adviser may target a shorter or longer average portfolio duration based on the Sub-Adviser's forecast of interest rates and view of fixed-income markets generally.
With respect to credit quality, under normal market conditions, at least 90% of the Fund's assets invested in Municipal Bonds will be in Municipal Bonds rated “A” or better by at least one major credit rating agency or, if unrated, deemed to be of comparable quality by the Sub-Adviser. From time to time, the Fund may concentrate (
According to the Registration Statement, under normal market conditions, at least 80% of the Fund's income will be exempt from federal income taxes. However, a significant portion of the Fund's income could be derived from securities subject to the alternative minimum tax.
While the Fund, under normal market conditions, will invest at least eighty percent (80%) of its assets in Municipal Bonds, as described above, the Fund may invest its remaining assets in other assets and financial instruments, as described below.
The Fund may invest in equity securities, both directly and indirectly through investment in shares of exchange-traded funds (“ETFs”),
The Fund may purchase taxable municipal bonds when the Sub-Adviser believes they offer opportunities for the Fund, or variable rate demand notes (VRDNs) that pay interest monthly or quarterly based on a floating rate that is reset daily or weekly based on an index of short-term municipal rates.
The Fund may invest in exchange-traded and OTC securities convertible into common stock. Such securities include the following: Convertible bonds and convertible preferred stocks.
The Fund may invest directly and indirectly in cash equivalents, namely, money market instruments that include the following: U.S. Government obligations or corporate debt obligations (including those subject to repurchase agreements); banker's acceptances
In order to maintain sufficient liquidity, to implement investment strategies or for temporary defensive purposes, the Fund may invest a significant portion of its assets in shares of one or more money market funds. Generally, money market mutual funds are registered investment companies that seek to earn income consistent with the preservation of capital and maintenance of liquidity by investing primarily in high quality money market instruments.
The Fund may invest in the securities of other investment companies in compliance with Section 12(d)(1)(E), (F) and (G) of the 1940 Act and the rules thereunder.
The Fund may write U.S. exchange-traded call and put options on securities, ETFs or security indexes to seek income or may purchase or write U.S. exchange-traded put or call options for hedging purposes.
The Fund may purchase securities on a when-issued basis or for settlement at a future date (forward commitment) if the Fund holds sufficient liquid assets to meet the purchase price.
Additionally, the Trust, on behalf of the Fund, has claimed an exclusion from the definition of the term “commodity pool operator” pursuant to Rule 4.5 under the Commodity Exchange Act, as amended (the “CEA”). Therefore, the Fund is not subject to regulation or registration as a commodity pool operator under the CEA.
The Fund may, from time to time, take temporary defensive positions that are inconsistent with its principal investment strategies in an attempt to respond to adverse market, economic, political or other conditions. In such circumstances, the Fund may also hold up to 100% of its portfolio in cash and cash equivalent positions.
The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), consistent with Commission guidance. The Fund will monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of the Fund's net assets are held in illiquid assets. Illiquid assets include securities subject to contractual or other restrictions on resale and other instruments that lack readily available markets as determined in accordance with Commission staff guidance.
The Fund will seek to qualify for treatment as a regulated investment company under the Internal Revenue Code of 1986.
The Fund's investments will be consistent with its investment objective and will not be used to provide multiple returns of a benchmark or to produce leveraged returns.
According to the Registration Statement, the Trust will issue and sell Shares of the Fund only in “Creation Units” on a continuous basis through the Distributor, at their net asset value (“NAV”) next determined after receipt, on any business day, for an order received in proper form. All orders to create Creation Units must be placed for one or more Creation Unit size aggregations of Shares (50,000 Shares per Creation Unit). The Creation Unit size is subject to change. Cash creations will be the default mechanism for creation of Shares.
However, the Fund will retain the ability to utilize an in-kind mechanism for creation of Shares, upon approval of the Distributor. In such case, the consideration for purchase of a Creation Unit of the Fund generally will consist of an in-kind deposit of “Deposit Securities” for each Creation Unit constituting a substantial replication, or a representation, of the securities included in the Fund's portfolio and a “Cash Component” computed as described below. Together, the Deposit Securities and the Cash Component constitute the “Fund Deposit”, which represents the minimum initial and subsequent investment amount for a Creation Unit of the Fund. The Cash Component is an amount equal to the difference between the NAV of the Shares (per Creation Unit) and the market value of the Deposit Securities. If the Cash Component is a positive number (
The Administrator, through the National Securities Clearing Corporation (“NSCC”), will make available on each business day, immediately prior to the opening of business on the Exchange (currently 9:30 a.m., Eastern Time), the list of the names and the required number of Shares of each Deposit Security to be included in the current Fund Deposit (based on information at the end of the previous business day) for the Fund. Such Fund Deposit will be applicable, subject to any adjustments as described below, in order to effect creations of Creation Units of the Fund until such time as the next-announced composition of the Deposit Securities is made available.
The identity and number of Shares of the Deposit Securities required for the Fund Deposit for the Fund will change as rebalancing adjustments and corporate action events occur from time to time. In addition, the Trust reserves the right to permit or require the substitution of an amount of cash—
In addition to the list of names and numbers of securities constituting the current Deposit Securities of the Fund Deposit, the Administrator, through NSCC, also will make available on each business day the estimated Cash Component, effective through and including the previous business day, per outstanding Creation Unit of the Fund.
To be eligible to place orders to create a Creation Unit of the Fund, an entity must be (i) a “Participating Party”,
All orders to create Creation Units must be received by the Distributor no later than the close of the regular trading session on the Exchange (ordinarily 4:00 p.m., Eastern Time), in each case on the date such order is placed in order for the creation of Creation Units to be effected based on the NAV of Shares of the Fund as next determined on such date after receipt of the order in proper form.
Shares may be redeemed only in Creation Units at their NAV next determined after receipt of a redemption request in proper form by the Distributor and the Fund through the Administrator and only on a business day. Cash redemptions will be the default mechanism for redemptions of Shares.
However, the Fund will retain the ability to utilize an in-kind mechanism for redemption of Shares, upon approval of the Distributor. In such case, the redemption proceeds for a Creation Unit generally consist of Deposit Securities, as announced by the Administrator on the business day of the request for redemption received in proper form, plus cash in an amount equal to the difference between the NAV of the Shares being redeemed, as next determined after a receipt of a request in proper form, and the value of the
With respect to the Fund, the Administrator, through NSCC, will make available immediately prior to the opening of business on the Exchange (currently 9:30 a.m., Eastern Time) on each business day, the Deposit Securities that will be applicable (subject to possible amendment or correction) to redemption requests received in proper form on that day. Deposit Securities received on redemption may not be identical to Deposit Securities which are applicable to creations of Creation Units.
If it is not possible to effect deliveries of the Deposit Securities, the Trust may in its discretion exercise its option to redeem such shares in cash, and the redeeming beneficial owner will be required to receive its redemption proceeds in cash. In addition, an investor may request a redemption in cash which the Fund may, in its sole discretion, permit.
The right of redemption may be suspended or the date of payment postponed with respect to the Fund (1) for any period during which the Exchange is closed (other than customary weekend and holiday closings); (2) for any period during which trading on the Exchange is suspended or restricted; (3) for any period during which an emergency exists as a result of which disposal of the Shares of the Fund or determination of the Shares' NAV is not reasonably practicable; or (4) in such other circumstance as is permitted by the Commission.
The NAV per Share for the Fund will be computed by dividing the value of the net assets of the Fund (
The pricing and valuation of portfolio securities will be determined in good faith in accordance with procedures approved by, and under the direction of, the Trust's Board of Trustees (“Board”). In determining the value of the Fund's assets, equity securities will be generally valued at market using quotations from the primary market in which they are traded. Debt securities (other than short-term investments) will be valued on the basis of broker quotes or valuations provided by a pricing service, which in determining value will utilize information regarding recent sales, market transactions in comparable securities, quotations from dealers, and various relationships between securities. Other assets, such as accrued interest, accrued dividends and cash also will be included in determining the NAV. The Fund normally will use third party pricing services to obtain portfolio security prices.
Municipal Bonds, money market instruments, convertible bonds and VRDNs will generally be valued at bid prices received from independent pricing services as of the announced closing time for trading in fixed-income instruments in the respective market.
Exchange-traded equity securities, including common stocks, ETFs, preferred stocks, convertible preferred stocks and warrants, will be valued at market value, which will generally be determined using the last reported official closing or last trading price on the exchange or market on which the security is primarily traded at the time of valuation or, if no sale has occurred, at the last quoted bid price on the primary market or exchange on which they are traded. If market prices are unavailable or the Fund believes that they are unreliable, or when the value of a security has been materially affected by events occurring after the relevant market closes, the Fund will price those securities at fair value as determined in good faith using methods approved by the Trust's Board.
Equity securities traded in the OTC market, including common stocks, preferred stocks, and warrants, will be valued at the last reported sale price on the valuation date. OTC traded convertible preferred stocks will be valued based on price quotations obtained from a broker-dealer who makes markets in such securities or other equivalent indications of value provided by a third-party pricing service. Securities of non-exchange-traded investment company securities registered under the 1940 Act, including money market funds, will be valued at NAV.
Option contracts will be valued at their most recent sale price on the applicable exchange. If no such sales are reported, these contracts will be valued at their most recent bid price.
To the extent the assets of the Fund are invested in other open-end investment companies that are registered under the 1940 Act, the Fund's NAV will be calculated based upon the NAVs reported by such registered open-end investment companies.
Securities and assets for which market quotations are not readily available or which cannot be accurately valued using the Fund's normal pricing procedures will be valued by the Trust's Fair Value Pricing Committee at fair value as determined in good faith under policies approved by the Board. Fair value pricing may be used, for example, in situations where (i) portfolio securities, such as securities with small capitalizations, are so thinly traded that there have been no transactions for that security over an extended period of time; (ii) an event occurs after the close of the exchange on which a portfolio security is principally traded that is likely to change the value of the portfolio security prior to the Fund's NAV calculation; (iii) the exchange on which the portfolio security is principally traded closes early; or (iv) trading of the particular portfolio security is halted during the day and does not resume prior to the Fund's NAV calculation. The Board will monitor and evaluate the Fund's use of fair value pricing, and periodically reviews the results of any fair valuation under the Trust's policies.
The Fund's Web site (
The Fund will disclose on the Fund's Web site the following information regarding each portfolio holding, as applicable to the type of holding: Ticker symbol, CUSIP number or other identifier, if any; a description of the holding (including the type of holding); the identity of the security, index or other asset or instrument underlying the holding, if any; for options, the option strike price; quantity held (as measured by, for example, par value, notional value or number of shares, contracts or units); maturity date, if any; coupon rate, if any; effective date, if any; market value of the holding; and the percentage weighting of the holding in the Fund's portfolio. The Web site information will be publicly available at no charge.
In addition, a basket composition file, which includes the security names and share quantities, if applicable, required to be delivered in exchange for the Fund's Shares, together with estimates and actual cash components, will be publicly disseminated daily prior to the opening of the Exchange via the NSCC. The basket represents one Creation Unit of the Fund. The NAV of Shares of the Fund will normally be determined as of the close of the regular trading session on the Exchange (ordinarily 4:00 p.m., Eastern Time) on each business day. Authorized Participants may refer to the basket composition file for information regarding securities and financial instruments that may comprise the Fund's basket on a given day.
The approximate value of the Fund's investments on a per-Share basis, the Indicative Intra-Day Value (“IIV”), will be disseminated every 15 seconds during the Exchange Core Trading Session. The IIV should not be viewed as a “real-time” update of NAV because the IIV will be calculated by an independent third party and may not be calculated in the exact same manner as NAV, which will be computed daily.
The IIV for the Fund will be calculated by dividing the “Estimated Fund Value” as of the time of the calculation by the total number of outstanding Shares. “Estimated Fund Value” is the sum of the estimated amount of cash held in the Fund's portfolio, the estimated amount of accrued interest owing to the Fund and the estimated value of the securities held in the Fund's portfolio, minus the estimated amount of the Fund's liabilities. The IIV will be calculated based on the same portfolio holdings disclosed on the Fund's Web site. In determining the estimated value for each of the component securities, the IIV will use last sale, market prices or other methods that would be considered appropriate for pricing securities held by registered investment companies.
Investors can also obtain the Trust's Statement of Additional Information (“SAI”), the Fund's shareholder reports, and its Form N-CSR and Form N-SAR, filed twice a year. The Trust's SAI and Shareholder Reports will be available free upon request from the Trust, and those documents and the Form N-CSR and Form N-SAR may be viewed on-screen or downloaded from the Commission's Web site at
Quotation and last sale information for the Shares and the underlying U.S. exchange-traded equity securities will be available via the Consolidated Tape Association (“CTA”) high-speed line, and from the national securities exchange on which they are listed. Price information regarding non-U.S. exchange-traded equity securities held by the Fund will be available from the exchanges trading such assets.
Quotation information from brokers and dealers or pricing services will be available for Municipal Bonds, taxable municipal bonds, convertible bonds, VRDNs, and cash equivalents. Price information for investment company securities (other than ETFs) will be available from the applicable investment company's Web site and from market data vendors. Price information for OTC equity securities will be available from major market data vendors. Pricing information regarding each asset class in which the Fund will invest will generally be available through nationally recognized data service providers through subscription agreements. Quotation and last sale information for exchange-traded options will be available via the Options Price Reporting Authority and from the applicable U.S. options exchange. In addition, the IIV, (which is the Portfolio Indicative Value, as defined in NYSE Arca Equities Rule 8.600(c)(3)), will be widely disseminated at least every 15 seconds during the Core Trading Session by one or more major market data vendors.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4 a.m. to 8 p.m., Eastern Time in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. Consistent with NYSE Arca Equities Rule 8.600(d)(2)(B)(ii), the Adviser will implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material non-public information regarding the actual components of the Fund's portfolio. The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A-3
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, or by regulatory staff of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
FINRA, on behalf of the Exchange, or regulatory staff of the Exchange, will communicate as needed regarding trading in the Shares, options and certain exchange-traded equity securities with other markets and other entities that are members of the ISG, and FINRA, on behalf of the Exchange, or regulatory staff of the Exchange, may obtain trading information regarding trading in the Shares, options and certain exchange-traded equity securities from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares, options and certain exchange-traded equity securities from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. In addition, FINRA, on behalf of the Exchange, is able to access, as needed, trade information for certain fixed income securities held by the Fund reported to FINRA's Trade Reporting and Compliance Engine (“TRACE”). FINRA also can access data obtained from the Municipal Securities Rulemaking Board (“MSRB”) relating to municipal bond trading activity for surveillance purposes in connection with trading in the Shares.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its Equity Trading Permit Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated IIV will not be calculated or publicly disseminated; (4) how information regarding the IIV and the Disclosed Portfolio is disseminated; (5) the requirement that Equity Trading Permit Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4:00 p.m., Eastern Time each trading day.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. In addition, a large amount of information is publicly available regarding the Fund and the Shares, thereby promoting market transparency. Quotation and last sale information for the Shares and the underlying U.S. exchange-traded equity securities will be available via the CTA high-speed line, and from the national securities exchange on which they are listed. The Fund will disclose on the Fund's Web site the following information regarding each portfolio holding, as applicable to the type of holding: Ticker symbol, CUSIP number or other identifier, if any; a description of the holding (including the type of holding); the identity of the security, index or other asset or instrument underlying the holding, if any; for options, the option strike price; quantity held (as measured by, for example, par value, notional value or number of shares, contracts or units); maturity date, if any; coupon rate, if any; effective date, if any; market value of the holding; and the percentage weighting of the holding in the Fund's portfolio. Moreover, prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. Trading in the Shares will be subject to NYSE Arca Equities Rule 8.600(d)(2)(D), which sets forth circumstances under which Shares of the Fund may be halted. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the IIV, the Disclosed Portfolio, and quotation and last sale information for the Shares.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an additional type of actively-managed exchange-traded product that principally holds municipal bonds and that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the IIV, the Disclosed Portfolio, and quotation and last sale information for the Shares.
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 purpose of the Act. The Exchange notes that the proposed rule change will facilitate the listing and trading of an additional type of actively-managed exchange-traded product that principally holds municipal bonds and that will enhance competition among market participants, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form T-6 (17 CFR 269.9) is an application for eligibility and qualification for a foreign person or corporation under the Trust Indenture Act of 1939 (15 U.S.C. 77aaa
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.
The public may view the background documentation for this information collection at the following Web site,
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the NYSE Listed Company Manual (the “Manual”) to provide that any senior official of a listed company with the rank of Corporate Secretary or higher can sign the written request of a listed company seeking to change its designated market maker (“DMM”) unit required by Section 806.01 of the Manual. The filing also proposes to replace outdated references throughout the Manual to “Specialists” with references to “DMMs” and update the text of Section 402.09(E) to reflect the current text of NYSE Rule 460. 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 the Manual to provide that any senior official of a listed company with the rank of Corporate Secretary or higher can sign the written request of a listed company seeking to change its DMM unit required by Section 806.01 of the Manual. The filing also proposes to replace outdated references throughout the Manual to “Specialists” with
Section 806.01 of the Manual establishes a process to be followed by any listed company wishing to change to a new DMM unit. Pursuant to Section 806.01, a listed company wishing to change DMM units must file with the Corporate Secretary of the Exchange a written notice (the “Issuer Notice”), signed by the company's chief executive officer. The Issuer Notice is required to indicate the specific issues prompting this request. It has been the Exchange's experience that companies have occasionally found it burdensome to obtain the signature of their CEO for purposes of submitting an Issuer Notice and that this requirement has caused an undesirable delay when companies are making their submissions. We also note that this requirement is inconsistent with the Exchange Rule 103B, which provides that any senior official with the rank of Corporate Secretary or higher (or, in the case of a structured product listing, a senior officer of the issuer) can sign the notice in which a listed company informs the Exchange of its initial selection of a DMM unit. It has been the Exchange's experience that a senior officer other than the chief executive officer often manages the DMM relationship on behalf of the listed company and has authority to take action in relation to that relationship. In light of that fact, the Exchange believes there is no reason to have different requirements with respect to the commencement and severing of a listed company's relationship with its DMM unit. Consequently, we propose to amend Section 806.01 to provide that any official with the rank of Corporate Secretary or higher at a listed company may sign an Issuer Notice.
The Exchange amended its rules a number of years ago to significantly change the role of specialists on the trading floor.
The Exchange believes that the proposed rule change is consistent with Section 6(b)
The replacement of references to “specialists” with references to “DMMs” and the amendment of the text of Section 402.09(E) are non-substantive changes to update the terminology and reflect the Exchange's current Rule 460 and therefore have no implications for the protection of investors.
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 purpose of the Act. The proposed rule change is designed to permit listed companies to apply for a change in the DMM unit allocated to their securities on the basis of a notice signed by any officer with the title of Corporate Secretary or higher rather than requiring that it be signed in all cases by the CEO, as is currently the case. The proposed amendment simply provides more flexibility in providing the required paperwork and conforms the signing requirements with respect to the commencement and severing of a listed company's relationship with its DMM unit, but does not change any of the substantive rights of the listed company or the DMM unit in any way. As such, the Exchange does not expect the rule change to have any significant impact on competition. The other proposed changes are non-substantive changes to update terminology and reflect the Exchange's current Rule 460 and therefore have no significant impact on competition.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the certificate of incorporation of its parent Company, CBOE Holdings, Inc. (“CBOE Holdings”). 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.
On May 21, 2015, CBOE Holdings' stockholders approved proposed amendments to the Certificate. On October 22[sic], 2015, in accordance with Article Eleventh of the Certificate, the Exchange submitted a rule filing proposing to make the approved amendments to the Certificate.
Next, CBOE Holdings proposes to correct an error related to the ownership concentration limitation. Particularly, CBOE Holdings had proposed to remove references to the 10% ownership concentration limitation applicable before CBOE Holdings' initial public offering (“IPO”) in 2010, as discussed in SR-C2-2015-026.
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.
In particular, CBOE Holdings believes the proposed amendments to its Certificate are non-substantive and clarifying in nature, alleviating potential confusion. Additionally, CBOE Holdings believes that conforming the current Certificate to the Certificate approved by CBOE Holdings' shareholders on May 21, 2015, alleviates potential confusion. The alleviation of potential confusion removes impediments to and perfects the mechanism of a free and open market and a national market system, and, in general, protect investors and the public interest.
Because the proposed rule change relates to the governance of CBOE Holdings and not to the operations of the Exchange, the Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
In its filing, the Exchange requested that the Commission waive both the 5 business day prefiling requirement as well as the 30-day operative delay so that the Exchange can expeditiously obtain effectiveness, as required by CBOE Holdings' governing documents, for two changes approved by CBOE Holdings' shareholders to the Certificate of Incorporation of CBOE Holdings that the Exchange failed to correctly mark in the recent filing it submitted to seek effectiveness of the overall package of shareholder-approved changes.
The Commission believes that waiving the 5 business day prefiling requirement and the 30-day operative delay is consistent with the protection of investors and the public interest, as it will allow two non-controversial proposed conforming edits to the CBOE Holdings Certificate of Incorporation to take effect without delay. The Commission notes the Exchange previously filed to amend the Certificate and that filing has since become effective. The Exchange represents that the change to Article Third is non-substantive and non-controversial. The change to Article Sixth corrects an obvious typographical error, as the language continued to reference the ownership concentration limit but failed to include the limit's numerical expression. That limit is contained elsewhere in Article Sixth (b), including in the opening paragraph. Accordingly, adding a reference to the long-standing “20%” back to paragraph (b)(iii) is a conforming edit to fill an obvious gap created by a rule text marking error in the Exchange's recent filing. The two proposed edits do not raise any new or novel issues, and allowing these edits to be made without further delay will allow the Exchange to promptly update the Certificate of Incorporation of CBOE Holdings. For this reason, the
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17Ad-11 requires every registered recordkeeping transfer agent to report to issuers and its appropriate regulatory agency in the event that the aggregate market value of an aged record difference exceeds certain thresholds. A record difference occurs when an issuer's records do not agree with those of securityholders as indicated, for instance, on certificates presented to the transfer agent for purchase, redemption or transfer. An aged record difference is a record difference that has existed for more than 30 calendar days. In addition, the rule requires every recordkeeping transfer agent to report to its appropriate regulatory agency in the event of a failure to post certificate detail to the master securityholder file within five business days of the time required by Rule 17Ad-10 (17 CFR 240.17Ad-10). Also, a transfer agent must maintain a copy of any report required under Rule 17Ad-11 for a period of not less than three years following the date of the report, the first year in an easily accessible place.
Because the information required by Rule 17Ad-11 is already available to transfer agents, any collection burden for small transfer agents is minimal. Based on a review of the number of Rule 17Ad-11 reports the Commission, the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, and the Federal Deposit Insurance Corporation received since 2012, the Commission staff estimates that 10 respondents will file a total of approximately 12 reports annually. The Commission staff estimates that, on average, each report can be completed in 30 minutes. Therefore, the total annual hourly burden to the entire transfer agent industry is approximately six hours (30 minutes × 12 reports). Assuming an average hourly rate of $25 for a transfer agent staff employee, the average total internal cost of the report is $12.50. The total annual internal cost of compliance for the approximate 10 respondents is approximately $150.00 (12 reports × $12.50).
The retention period for the recordkeeping requirement under Rule 17Ad-11 is three years following the date of a report prepared pursuant to the rule. The recordkeeping requirement under Rule 17Ad-11 is mandatory to assist the Commission and other regulatory agencies with monitoring transfer agents and ensuring compliance with the rule. This rule does not involve the collection of confidential information.
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 number.
Background documentation for this information collection may be viewed at the following Web site:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Schedule 14D-1F (17 CFR 240.14d-102) is a form that may be used by any person (the “bidder”) making a cash tender or exchange offer for securities of any issuer (the “target”) incorporated or organized under the laws of Canada or any Canadian province or territory that is a foreign private issuer, where less than 40% of the outstanding class of the target's securities that is the subject of the offer is held by U.S. holders. Schedule 14D-1F is designed to facilitate cross-border transactions in the securities of Canadian issuers. The information required to be filed with the Commission provides security holders with material information regarding the bidder as well as the transaction so that they may make informed investment decisions. Schedule 14D-1F takes approximately 2 hours per response to prepare and is filed by approximately 2 respondents annually for a total reporting burden of 4 hours (2 hours per response × 2 responses).
Written comments are invited on: (a) Whether this 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) 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. 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 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
Regulation S-ID (17 CFR 248), including the information collection requirements thereunder, is designed to better protect investors from the risks of identity theft. Under Regulation S-ID, SEC-regulated entities are required to develop and implement reasonable policies and procedures to identify, detect, and respond to relevant red flags (the “Identity Theft Red Flags Rules”) and, in the case of entities that issue credit or debit cards, to assess the validity of, and communicate with cardholders regarding, address changes. Section 248.201 of Regulation S-ID includes the following information collection requirements for each SEC-regulated entity that qualifies as a “financial institution” or “creditor” under Regulation S-ID and that offers or maintains covered accounts: (i) Creation and periodic updating of an identity theft prevention program (“Program”) that is approved by the board of directors, an appropriate committee thereof, or a designated senior management employee; (ii) periodic staff reporting to the board of directors on compliance with the Identity Theft Red Flags Rules and related guidelines; and (iii) training of staff to implement the Program. Section 248.202 of Regulation S-ID includes the following information collection requirements for each SEC-regulated entity that is a credit or debit card issuer: (i) Establishment of policies and procedures that assess the validity of a change of address notification if a request for an additional or replacement card on the account follows soon after the address change; and (ii) notification of a cardholder, before issuance of an additional or replacement card, at the previous address or through some other previously agreed-upon form of communication, or alternatively, assessment of the validity of the address change request through the entity's established policies and procedures.
SEC staff estimates of the hour burdens associated with section 248.201 under Regulation S-ID include the one-time burden of complying with this section for newly-formed SEC-regulated entities, as well as the ongoing costs of compliance for all SEC-regulated entities. With respect to the one-time burden hours, staff estimates that each newly-formed financial institution or creditor would incur a burden of 2 hours to conduct an initial assessment of covered accounts. Staff estimates that approximately 644 SEC-regulated financial institutions and creditors are newly formed each year, and the total estimated one-time burden to initially assess covered accounts is therefore 1,288 hours. Staff also estimates that each financial institution or creditor that maintains covered accounts would incur an additional initial burden of 29 hours to develop and obtain board approval of a Program and to train the staff of the financial institution or creditor. Staff estimates that approximately 580 SEC-regulated financial institutions and creditors that maintain covered accounts are newly formed each year, and thus the total estimated one-time burden to develop
With respect to ongoing annual burden hours, SEC staff estimates that each financial institution or creditor would incur a burden of 1 hour to periodically assess whether it offers or maintains covered accounts. Staff estimates that there are approximately 9,960 SEC-regulated entities that are either financial institutions or creditors, and the total estimated annual burden to periodically assess covered accounts is therefore 9,960 hours. Staff also estimates that each financial institution or creditor that maintains covered accounts would incur an additional annual burden of 9.5 hours to prepare and present an annual report to the board and to periodically review and update the Program. Staff estimates that there are approximately 8,964 SEC-regulated entities that are financial institutions or creditors that offer or maintain covered accounts, and thus the total estimated additional annual burden for these entities is 85,158 hours. Thus, the total ongoing annual estimated burden for all SEC-regulated entities is 95,118 hours (9,960 hours + 85,158 hours).
The collections of information required by section 248.202 under Regulation S-ID will apply only to SEC-regulated entities that issue credit or debit cards. SEC staff understands that SEC-regulated entities generally do not issue credit or debit cards, but instead partner with other entities, such as banks, that issue cards on their behalf. These other entities, which are not regulated by the SEC, are already subject to substantially similar change of address obligations pursuant to other federal regulators' identity theft red flags rules. Therefore, staff does not expect that any SEC-regulated entities will be subject to the information collection requirements of section 248.202, and accordingly, staff estimates that there is no hour burden related to section 248.202 for SEC-regulated entities.
In total, SEC staff estimates that the aggregate annual information collection burden of Regulation S-ID is 113,226 hours (18,108 hours + 95,118 hours). This estimate of burden hours is made solely for the purposes of the Paperwork Reduction Act and is not derived from a quantitative, comprehensive, or even representative survey or study of the burdens associated with Commission rules and forms. Compliance with Regulation S-ID, including compliance with the information collection requirements thereunder, is mandatory for each SEC-regulated entity that qualifies as a “financial institution” or “creditor” under Regulation S-ID (as discussed above, certain collections of information under Regulation S-ID are mandatory only for financial institutions or creditors that offer or maintain covered accounts). Responses will not be kept confidential. 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: (i) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (ii) the accuracy of the agency's estimate of the burden of the collection of information; (iii) ways to enhance the quality, utility, and clarity of the information collected; and (iv) 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:
All submissions should refer to File Number 270-644. This file number should be included on the subject line if email is used. The Commission will post all comments on the Commission's Internet Web site (
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form T-3 (17 CFR 269.3) is an application for qualification of an indenture under the Trust Indenture Act of 1939 (15 U.S.C. 77aaa
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.
The public may view the background documentation for this information collection at the following Web site,
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing with the Commission a proposal amend [sic] Phlx Rule 1079 (FLEX Index, Equity and Currency Options) to make permanent a pilot program that eliminates minimum value sizes for opening transactions in new series of FLEX index options and FLEX equity options (together known as “FLEX Options”).
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend Phlx Rule 1079 (FLEX Index, Equity and Currency Options) to make permanent a pilot program that eliminates minimum value sizes for opening transactions in new series of FLEX Options (the “Pilot Program” or “Pilot”), and to indicate that the minimum size of a request for quote (“RFQ”) is one contract. The Exchange is requesting the Commission to permanently approve the Pilot Program. The Exchange believes that the Pilot Program has been successful and well received by its membership and the investing public for the period that it has been in operation as a pilot program.
Rule 1079 deals with the process of listing and trading FLEX equity, index, and currency options on the Exchange. Rule 1079(a)(8)(A) currently sets the minimum opening transaction value size in the case of a FLEX Option in a newly established (opening) series if there is no open interest in the particular series when a RFQ is submitted (except as provided in Commentary .01 to Rule 1079): (i) $10 million underlying equivalent value, respecting FLEX market index options, and $5 million underlying equivalent value respecting FLEX industry index options;
Presently, Commentary .01 to Rule 1079 states that by virtue of the Pilot Program ending January 31, 2016, or the date on which the pilot is approved on a permanent basis, there shall be no minimum value size requirements for FLEX Options as noted in subsections (a)(8)(A)(i) and (a)(8)(A)(ii) of Rule 1079. The Exchange now proposes to make the Pilot Program permanent.
In support of approving the Pilot Program on a permanent basis, and as required by the Pilot Program's approval order, the Exchange is submitting to the Commission a Pilot Program report (“Report”), which is a public report detailing the Exchange's experience with the Pilot.
The Exchange believes that there is sufficient investor interest and demand in the Pilot Program to warrant its permanent approval and indicate one contract as the minimum size of an RFQ for all opening transactions in new series of FLEX equity Options and FLEX index Options. The Exchange believes that, for the period that the Pilot Program has been in operation, it has provided investors with additional means of managing their risk exposures and carrying out their investment objectives. Furthermore, the Exchange has not experienced any adverse market effects with respect to the Pilot Program.
The Exchange believes that eliminating the minimum value size requirements for opening transactions in new FLEX series on a permanent basis is important and necessary to the Exchange's efforts to create a product and market that provide its membership and investors interested in FLEX-type options with an improved but comparable alternative to the over-the-counter (“OTC”) market in customized options, which can take on contract characteristics similar to FLEX Options but are not subject to the same restrictions. By making the Pilot Program permanent, market participants would continue to have greater flexibility in determining whether to execute their customized options in an exchange environment or in the OTC market. The Exchange believes that market participants would benefit from being able to trade these customized options in an exchange environment in several ways, including, but not limited to, the following: (i) Enhanced efficiency in initiating and closing out positions; (ii) increased market transparency; and (iii) heightened contra-party creditworthiness due to the role of The Options Clearing Corporation (“OCC”) as issuer and guarantor of FLEX Options. The Exchange also believes that the Pilot Program is wholly consistent with comments by then Secretary of the Treasury Timothy F. Geithner, to the U.S. Senate. In particular, Secretary Geithner has stated that:
Market efficiency and price transparency should be improved in derivatives markets by requiring the clearing of standardized contracts through regulated [central counterparties] and by moving the standardized part of these markets onto regulated exchanges and regulated transparent electronic trade execution systems for OTC derivatives and by requiring development of a system for timely reporting of trades and prompt dissemination of prices and other trade information. Furthermore, regulated financial institutions should be encouraged to make greater use of regulated exchange-traded derivatives. Competition between appropriately regulated OTC derivatives markets and regulated exchanges will make both sets of markets more efficient and thereby better serve end-users of derivatives.
The Exchange believes that the elimination of the minimum value size requirements for opening FLEX transactions in new FLEX series on a permanent basis would provide FLEX-participating members with greater flexibility in structuring the terms of FLEX Options that best comports with their and their customers' particular needs. In this regard, the Exchange notes that the minimum value size requirements for opening FLEX transactions in new FLEX series were originally put in place to limit participation in FLEX Options to sophisticated, high net worth investors rather than retail investors. However, the Exchange believes that the restriction is no longer necessary and is overly restrictive. The Exchange has also not experienced any adverse market effects with respect to the Pilot Program eliminating the minimum value size requirements for opening FLEX transactions in new FLEX series. Again, based on the Exchange's experience to date and throughout the Pilot Program period, the minimum value size requirements are at times too large to accommodate the needs of members and their customers—who may be institutional, high net worth, or retail—that currently participate in the OTC market. In this regard, the Exchange notes that, prior to establishing the Pilot Program, exchanges that allow FLEX options have received numerous requests from broker-dealers representing institutional, high net worth and retail investors indicating that the minimum value size requirements for opening transactions in new FLEX series prevented them from bringing transactions that are already taking place in the OTC market to an exchange environment.
The Exchange believes that eliminating the minimum value size requirements for opening transactions in new FLEX series on a permanent basis would further broaden the base of investors that use FLEX Options to manage their trading and investment risk, including investors that currently trade in the OTC market for customized options, where similar size restrictions do not apply. The Exchange also believes that this may open up FLEX Options to more retail investors. The Exchange does not believe that this raises any unique regulatory concerns because existing safeguards—such as certain position limit, exercise limit, and reporting requirements—continue to apply.
In proposing the Pilot Program itself and in now proposing to make it permanent, the Exchange is cognizant of the need for market participants to have substantial options transaction capacity and flexibility to hedge their substantial investment portfolios, on the one hand, and the potential for adverse effects that the minimum value size restrictions were originally designed to address, on the other. However, the Exchange has not experienced any adverse market effects with respect to the Pilot Program. The Exchange is also cognizant of the OTC market, in which similar restrictions on minimum value size do not apply. In light of these considerations and Secretary Geithner's comments on moving the standardized parts of OTC contracts onto regulated exchanges, the Exchange believes that making the Pilot Program permanent is appropriate and reasonable and will provide market participants with additional flexibility in determining whether to execute their customized
Pursuant to this filing, the Exchange is proposing to adopt the existing Pilot Program on a permanent basis. Specifically, the Exchange proposes to eliminate in subsections (a)(8)(A)(i) and (a)(8)(A)(ii) of Rule 1079 references to different minimum sizes applicable to opening FLEX transactions in FLEX market index Options, FLEX industry index Options, and FLEX equity Options, and to indicate that the minimum size for all three such options will be one contract; and to eliminate the Pilot Program set forth in Commentary .01 to Rule 1079.
For the foregoing reasons, the Exchange believes that the proposed changes to the minimum value size for opening transactions in new series of FLEX equity and index Options are reasonable and appropriate, promote just and equitable principles of trade, and facilitate transactions in securities while continuing to foster the public interest and investor protection, and therefore should be adopted on a permanent basis. The Exchange will continue to monitor the usage of FLEX Options and review whether changes need to be made to its Rules or the ODD to address any changes in retail FLEX Option participation or any other issues that may occur as a result of the elimination of the minimum value sizes on a permanent basis.
The Exchange's proposal is consistent with Section 6(b) of the Act
The Exchange also believes that eliminating the minimum value size requirements for opening FLEX transactions in new FLEX series, thus affording all market participants with an equal opportunity to tailor opening FLEX transactions to meet their own investment objectives without being encumbered by a minimum contract size, will help to remove impediments to and perfect the mechanism of a free and open market and a national market system. In addition, affording market participants who trade FLEX Options the same investment tools available to their counterparts on the NYSE Arca and CBOE will foster cooperation and coordination with persons engaged in facilitating transactions in securities and will help to remove impediments to a free and open market and a national market system. The Exchange believes that adopting rules similar to those approved for and in use at NYSE Arca and CBOE, as discussed, does not raise any unique regulatory concerns. Lastly, the Exchange also believes that the proposed rule change, which provides all market participants, including public investors, with additional opportunities to trade customized options in an exchange environment and subject to exchange based rules, is appropriate in the public interest and for the protection of investors.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the proposal would give traders and investors the opportunity to more effectively tailor their trading, investing and hedging through FLEX options traded on the Exchange. Specifically, the proposal is structured to offer the same enhancement to all market participants, regardless of account type, and will not impose a competitive burden on any participant. The Exchange believes that adopting similar FLEX rules to those of NYSE Arca and CBOE will allow the Exchange to more efficiently compete for FLEX Options orders. In addition, the Exchange believes that adopting the Pilot Program on a permanent basis will enable the Exchange to compete with the OTC market, in which similar restrictions on minimum value size do not apply.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the certificate of incorporation of its parent Company, CBOE Holdings, Inc. (“CBOE Holdings”). 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.
On May 21, 2015, CBOE Holdings' stockholders approved proposed amendments to the Certificate. On October 22 [sic], 2015, in accordance with Article Eleventh of the Certificate, the Exchange submitted a rule filing proposing to make the approved amendments to the Certificate.
Next, CBOE Holdings proposes to correct an error related to the ownership concentration limitation. Particularly, CBOE Holdings had proposed to remove references to the 10% ownership concentration limitation applicable before CBOE Holdings' initial public offering (“IPO”) in 2010, as discussed in SR-CBOE-2015-092.
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.
In particular, CBOE Holdings believes the proposed amendments to its Certificate are non-substantive and clarifying in nature, alleviating potential confusion. Additionally, CBOE Holdings believes that conforming the current Certificate to the Certificate approved by CBOE Holdings' shareholders on May 21, 2015, alleviates potential confusion. The alleviation of potential confusion removes impediments to and perfects the mechanism of a free and open market and a national market system, and, in general, protect investors and the public interest.
Because the proposed rule change relates to the governance of CBOE Holdings and not to the operations of the Exchange, the Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
In its filing, CBOE requested that the Commission waive both the 5 business day prefiling requirement as well as the 30-day operative delay so that CBOE can expeditiously obtain effectiveness, as required by CBOE Holdings' governing documents, for two changes approved by CBOE Holdings' shareholders to the Certificate of Incorporation of CBOE Holdings that CBOE failed to correctly mark in the recent filing it submitted to seek effectiveness of the overall package of shareholder-approved changes.
The Commission believes that waiving the 5 business day prefiling requirement and the 30-day operative delay is consistent with the protection of investors and the public interest, as it will allow two non-controversial proposed conforming edits to the CBOE Holdings Certificate of Incorporation to take effect without delay. The Commission notes CBOE previously filed to amend the Certificate and that filing has since become effective. CBOE represents that the change to Article Third is non-substantive and non-controversial. The change to Article Sixth corrects an obvious typographical error, as the language continued to reference the ownership concentration limit but failed to include the limit's numerical expression. That limit is contained elsewhere in Article Sixth (b), including in the opening paragraph. Accordingly, adding a reference to the long-standing “20%” back to paragraph (b)(iii) is a conforming edit to fill an obvious gap created by a rule text marking error in CBOE's recent filing. The two proposed edits do not raise any new or novel issues, and allowing these edits to be made without further delay will allow CBOE to promptly update the Certificate of Incorporation of CBOE Holdings. For this reason, 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. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Social Security Administration.
Notice; request for comments.
This notice provides advance notification to State Achieving a Better Life Experience (ABLE) programs of the general types of information we anticipate requiring that the State programs include in their monthly electronic reports of ABLE account balances and distributions. We are also requesting information from the public and State ABLE programs about these general types of information and whether these electronic reports should include any other information.
Comments must be received by January 13, 2016.
You may submit comments by any one of three methods—Internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. No matter which method you choose, please state that your comments refer to Docket No. [SSA-2015-0059] so that we may associate your comments with the correct document.
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Comments are available for public viewing on the Federal eRulemaking portal at
Eric Skidmore, Office of Income Security Programs, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235, (410) 597-1833. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online at
Section 529A(d)(4) of the Internal Revenue Code provides that “States shall submit electronically on a monthly basis to the Commissioner of Social Security, in the manner specified by the Commissioner, statements on relevant distributions and account balances from all ABLE accounts.” Before accepting these electronic reports, we will enter into a data exchange agreement with each State. This agreement will specify the content, format, and the security and privacy requirements for these reports. However, we recognize that general guidance in advance of entering into these agreements may be helpful to the States as they design their ABLE programs, and we do not want uncertainty concerning these reports to delay the States' implementing their programs. Therefore, we are issuing this advance notice to inform State ABLE programs of the general types of information we anticipate requesting they include in their monthly reports of ABLE account balances and distributions.
NOTICE: We currently anticipate that our data exchange agreements will require that the States provide in their monthly electronic reports information, concerning each ABLE account:
• Name of the designated beneficiary;
• Social Security number of the designated beneficiary;
• date of birth of the designated beneficiary;
• name of the person who has signature authority (if different from the designated beneficiary);
• unique account number assigned by the State to the ABLE account;
• account opened date;
• account closed date;
• balance as of the first moment of the month (that is, the balance as of 12:00 a.m. local time on the first of the month);
• date of each distribution in the reporting period; and
• amount of each distribution in the reporting period.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to January 13, 2016.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Derek Rivers, Bureau of Consular Affairs, Overseas Citizens Services (CA/OCS/PMO), U.S. Department of State, SA-17, 10th Floor, Washington, DC 20036 or at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to January 13, 2016.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Derek Rivers, Bureau of Consular Affairs, Overseas Citizens Services (CA/OCS/PMO), U.S. Department of State, SA-17, 10th Floor, Washington, DC 20036 or at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
Office of the United States Trade Representative.
Request for comments; notice of hearing.
The Office of the United States Trade Representative (USTR), with the participation of other U.S. Government agencies, will convene a public hearing and seek public comment to assist in the preparation of its report to Congress on policy levers for deepening the U.S.-Africa trade and investment relationship.
Written comments are due by 11:59 p.m., Tuesday, January 19, 2016. Persons wishing to testify orally at the hearing must provide written notification of their intention, as well as a summary of their testimony, by 11:59 p.m., Tuesday, January 19, 2016. The hearing will be held on Thursday, January 28, 2016, beginning at 9:30 a.m. in the Main Hearing Room, 500 E Street SW., Washington, DC 20436.
Written comments and notifications of intent to testify should be submitted electronically via the Internet at
For procedural questions concerning written comments, please contact Yvonne Jamison at (202) 395-3475. All other questions regarding this notice should be directed to Bennett Harman, Deputy Assistant United States Trade Representative for Africa, at (202) 395-9612.
The African Growth and Opportunity Act (AGOA) (Title I of the Trade and Development Act of 2000, Pub. L. 106-200) (19 U.S.C. 2466a
Accordingly, USTR is undertaking a comprehensive analysis to examine how to deepen our trade and investment relationship with sub-Saharan African countries. USTR is hereby soliciting public comment to assist in the preparation of its report.
USTR invites written comments and/or oral testimony of interested persons on issues including, but not limited to, the following: (a) Why a deeper trade and investment relationship is critical both for African growth and for U.S. interests; (b) which trade and investment policy areas should serve as building blocks to deepen this relationship; (c) what goals should the U.S. and African partners establish with respect to each building block; and (d) what mechanisms and approaches could be used to best achieve these goals. Written comments must be received no later than 11:59 p.m., Tuesday, January 19, 2016.
A hearing will be held on Thursday, January 28, 2016, in the Main Hearing Room, 500 E Street SW., Washington, DC 20436, in the facilities of the U.S. International Trade Commission. Persons wishing to testify at the hearing must provide written notification of their intention by 11:59 p.m., Tuesday, January 19, 2016. The intent to testify notification must be made in the “Type Comment” field under docket number USTR-2015-0019 on the
Persons submitting a notification of intent to testify and/or written comments must do so in English and must identify (on the first page of the submission) “Post-AGOA Trade and Investment.” In order to be assured of consideration, comments should be submitted by 11:59 p.m., Tuesday, January 19, 2016.
In order to ensure the timely receipt and consideration of comments, USTR strongly encourages commenters to make on-line submissions, using the
The
For any comments submitted electronically containing business confidential information, the file name of the business confidential version should begin with the characters “BC”. Any page containing business confidential information must be clearly marked “BUSINESS CONFIDENTIAL” on the top of that page. Filers of submissions containing business confidential information must also submit a public version of their comments. The file name of the public version should begin with the character “P”. The “BC” and “P” should be followed by the name of the person or entity submitting the comments or reply comments. Filers submitting comments containing no business confidential information should name their file using the name of the person or entity submitting the comments.
Please do not attach separate cover letters to electronic submissions; rather, include any information that might appear in a cover letter in the comments themselves. Similarly, to the extent possible, please include any exhibits, annexes, or other attachments in the same file as the submission itself, not as separate files.
As noted, USTR strongly urges submitters to file comments through
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for review and approval and invites public comment. The FMCSA requests approval to revise an ICR titled, “Motor Carrier Identification Report,” which is used to identify FMCSA regulated entities, help prioritize the agency's activities, aid in assessing the safety outcomes of those activities, and for statistical purposes. This ICR is being revised due to a Final Rule titled, “Unified Registration System (80 FR 63695) dated October 21, 2015, which changed the effective and compliance dates for the on-line Unified Registration System (URS) from October 23, 2015, in the URS Final Rule, (78 FR 52608) dated August 23, 2013, to September 30, 2016.
Please send your comments to this notice by January 13, 2016. OMB must receive your comments by this date to act quickly on the ICR.
All comments should reference Federal Docket Management System (FDMS) Docket Number FMCSA-2015-0268. Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/Federal Motor Carrier Safety Administration, and sent via electronic mail to
Mr. Jeff Secrist, Office of Registration and Safety Information, Department of Transportation, Federal Motor Carrier Safety Administration, West Building 6th Floor, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. Telephone: 202-385-2367; email
The Department of Transportation and Related Agencies Appropriations Act for fiscal year 2002, Public Law 107-87, 115 Stat. 833, dated December 18, 2001, directed the agency to issue an interim final rule (IFR) to ensure that new entrant motor carriers are knowledgeable about the Federal Motor Carrier Safety Regulations (FMCSRs) and standards. On May 13, 2002, the agency published an IFR titled, “New Entrant Safety Assurance Process” (67 FR 31978).
On August, 23, 2013, the agency published a Final Rule titled, “Unified Registration System,” (URS) which requires interstate motor carriers, freight forwarders, brokers, intermodal equipment providers, hazardous materials safety permit applicants, and cargo tank facilities to file for registration via a new online Form MCSA-1. The Form MCSA-1 will replace the existing Forms MCS-150B and MCS-150C in this ICR. However, the Form MCS-150 will be retained for the small number of Mexico-domiciled carriers that seek authority to operate beyond the United States municipalities on the United States-Mexico border and their commercial zones because they are not included within the scope of the URS Final Rule.
On October 21, 2015, the agency issued a Final Rule titled, “Unified Registration System,” (80 FR 63695) which changed the effective and compliance dates of the 2013 URS Final Rule in order to allow FMCSA additional time to complete the information technology (IT) systems work required to fully implement that rule. This change will require the continued use of the Forms MCS-150, MCS-150B and MCS-150C in this ICR until September 30, 2016, because these forms are still needed to support registration processes for entities subject to FMCSA's regulations. After this date, all forms except the MCS-150 in this ICR will be folded into the Form MCSA-1 in the OMB Control Number 2126-0051 titled, “FMCSA Registration/Updates,” ICR. The Form MCS-150 will be retained for the small number of Mexico-domiciled carriers that seek authority to operate beyond the United States municipalities on the U.S.-Mexico border because they are not included in the scope of the URS. This revised ICR captures the burden due to the use of the Form MCS-150B and Form MCS-150C until September 30, 2016, and the use of the Form MCS-150 by the Mexico-domiciled carriers after the implementation of the URS Final Rule.
On August 21, 2015, FMCSA published a
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemptions; request for comments.
FMCSA announces receipt of applications from 45 individuals for exemption from the prohibition against persons with insulin-treated diabetes mellitus (ITDM) operating commercial motor vehicles (CMVs) in interstate commerce. If granted, the exemptions would enable these individuals with ITDM to operate CMVs in interstate commerce.
Comments must be received on or before January 13, 2016.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2015-0338 using any of the following methods:
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• Fax: 1-202-493-2251.
Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The 45 individuals listed in this notice have recently requested such an exemption from the diabetes prohibition in 49 CFR 391.41(b)(3), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by statute.
Ms. Anfindsen, 22, has had ITDM since 1997. Her endocrinologist examined her in 2015 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. Her endocrinologist certifies that Ms. Anfindsen understands diabetes management and monitoring has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Anfindsen meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her optometrist examined her in 2015 and certified that she does not have diabetic retinopathy. She holds an operator's license from Georgia.
Mr. Arrant, 54, has had ITDM since 2009. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Arrant understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Arrant meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class B CDL from Georgia.
Mr. Benech, 54, has had ITDM since 2011. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Benech understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Benech meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Rhode Island.
Mr. Birch, 45, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Birch understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Birch meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Wisconsin.
Mr. Burgard, 41, has had ITDM since 1989. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Burgard understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Burgard meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Minnesota.
Mr. Cottom, 43, has had ITDM since 1978. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Cottom understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Cottom meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he stable proliferative diabetic retinopathy. He holds an operator's license from Pennsylvania.
Mr. Davenport, 64, has had ITDM since 2007. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Davenport understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Davenport meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Washington.
Mr. Davis, 61, has had ITDM since 2007. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Davis understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Davis meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from South Carolina.
Mr. DelPizzo, 35, has had ITDM since 2008. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. DelPizzo understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. DelPizzo meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Pennsylvania.
Mr. Demiter, 62, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Demiter understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Demiter meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Dipasquale, 22, has had ITDM since 2007. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Dipasquale understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Dipasquale meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from New York.
Mr. Doyle, 58, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Doyle understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Doyle meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Colorado.
Mr. Fetner, 47, has had ITDM since 2008. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Fetner understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Fetner meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Alabama.
Mr. Flores, 50, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Flores understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Flores meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Kansas.
Mr. Funk, 55, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Funk understands
Mr. Gage, 48, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Gage understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Gage meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a chauffeur's license from Michigan.
Mr. Goodwin, 77, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Goodwin understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Goodwin meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Kansas.
Ms. Greenberg, 55, has had ITDM since 2014. Her endocrinologist examined her in 2015 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. Her endocrinologist certifies that Ms. Greenberg understands diabetes management and monitoring has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Greenberg meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her optometrist examined her in 2015 and certified that she does not have diabetic retinopathy. She holds a Class B CDL from Virginia.
Mr. Griswold, 27, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Griswold understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Griswold meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New York.
Mr. Hudson, 47, has had ITDM since 2009. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hudson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hudson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from South Carolina.
Mr. Huffman, 43, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Huffman understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Huffman meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Texas.
Mr. Kuehn, 60, has had ITDM since 2010. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Kuehn understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Kuehn meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Minnesota.
Mr. Lair, 52, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Lair understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lair meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Arkansas.
Mr. Leman, 49, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function
Mr. Leuthold, 57, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Leuthold understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Leuthold meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Montana.
Mr. Massa, 49, has had ITDM since 2004. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Massa understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Massa meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Moss, 26, has had ITDM since 2001. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Moss understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Moss meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Georgia.
Mr. Moyer, 40, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Moyer understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Moyer meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Florida.
Ms. Occhipinti, 52, has had ITDM since 2013. Her endocrinologist examined her in 2015 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. Her endocrinologist certifies that Ms. Occhipinti understands diabetes management and monitoring has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Occhipinti meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her optometrist examined her in 2015 and certified that she does not have diabetic retinopathy. She holds a Class B CDL from Washington.
Mr. Patrick, 55, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Patrick understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Patrick meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a CDL from Michigan.
Mr. Petrucci, 73, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Petrucci understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Petrucci meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from New Hampshire.
Mr. Prather, 61, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Prather understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Prather meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class B CDL from Ohio.
Mr. Prosser, 53, has had ITDM since 2002. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Prosser understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Prosser meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Rhode Island.
Mr. Ruff, 67, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Ruff understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Ruff meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Washington.
Mr. Shrader, 51, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Shrader understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Shrader meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from California.
Mr. Smith, 58, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Smith understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Smith meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Kansas.
Mr. Smith, 67, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Smith understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Smith meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Vermont.
Mr. Taite, 64, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Taite understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Taite meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Michigan.
Mr. Tousignant, 47, has had ITDM since 2008. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Tousignant understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Tousignant meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Illinois.
Mr. Towell, 79, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Towell understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Towell meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Indiana.
Mr. Townsend, 71, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Townsend understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Townsend meets the
Mr. Warrick, 35, has had ITDM since 1987. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Warrick understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Warrick meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Nebraska.
Mr. White, 30, has had ITDM since 2004. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. White understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. White meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from California.
Mr. Wittig, 58, has had ITDM since 2009. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Wittig understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wittig meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New York.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated in the date section of the notice.
FMCSA notes that section 4129 of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users requires the Secretary to revise its diabetes exemption program established on September 3, 2003 (68 FR 52441).
Section 4129 requires: (1) Elimination of the requirement for 3 years of experience operating CMVs while being treated with insulin; and (2) establishment of a specified minimum period of insulin use to demonstrate stable control of diabetes before being allowed to operate a CMV.
In response to section 4129, FMCSA made immediate revisions to the diabetes exemption program established by the September 3, 2003 notice. FMCSA discontinued use of the 3-year driving experience and fulfilled the requirements of section 4129 while continuing to ensure that operation of CMVs by drivers with ITDM will achieve the requisite level of safety required of all exemptions granted under 49 U.S.C. 31136 (e).
Section 4129(d) also directed FMCSA to ensure that drivers of CMVs with ITDM are not held to a higher standard than other drivers, with the exception of limited operating, monitoring and medical requirements that are deemed medically necessary.
The FMCSA concluded that all of the operating, monitoring and medical requirements set out in the September 3, 2003 notice, except as modified, were in compliance with section 4129(d). Therefore, all of the requirements set out in the September 3, 2003 notice, except as modified by the notice in the
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, To submit your comment online, go to
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
Nitto Tire U.S.A., Inc. (Nitto), has determined that certain Nitto NT05 passenger car tires manufactured between December 14, 2014 and August 1, 2015, do not fully comply with paragraph S5.5(e) of Federal Motor Vehicle Safety Standard (FMVSS) No. 139,
The closing date for comments on the petition is January 13, 2016.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited at the beginning of this notice and submitted by any of the following methods:
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Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that your comments were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
Documents submitted to a docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at
The petition, supporting materials, and all comments received before the close of business on the closing date indicated above will be filed and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible. When the petition is granted or denied, notice of the decision will be published in the
Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule at 49 CFR part 556), Nitto submitted a petition for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety.
This notice of receipt of Nitto's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
Affected are approximately 1,059 Nitto NT05 size 295/35ZR18 99W passenger car tires manufactured between December 14, 2014 and August 1, 2015.
Nitto explains that the noncompliance is that the sidewall markings on the subject tires do not include the correct generic name for the plies in the tread and sidewall area of the tires as required by paragraph S5.5(e) of FMVSS No. 139. Specifically, the subject tires are marked with “Tread 2 Steel 2 Rayon 1 Nylon; Sidewall 3 Rayon.” The correct marking should be “Tread 2 Steel 2 Polyester 1 Nylon; Sidewall 3 Polyester.”
Paragraph S5.5(e) of FMVSS No. 139 requires in pertinent part:
S5.5
(e) The generic name of each cord material used in the plies (both sidewall and tread area) of the tire; . . .
Nitto stated its belief that the subject noncompliance is inconsequential to motor vehicle safety for the following reasons:
(1) Nitto believes that in the Safety Act Congress acknowledged that there are cases where a vehicle or equipment may fail to comply with a safety standard, but that the impact on motor vehicle safety is so slight that an exemption from the notice and remedy requirements of the Safety Act is justified.
(2) Nitto states that the subject tires meet all other performance and regulatory requirements of FMVSS No. 139.
(3) Nitto has not received any complaints, claims, or warranty adjustments related to this noncompliance.
(4) Nitto believes that NHTSA has previously granted inconsequential noncompliance petitions for noncompliances that it believes are similar to the subject noncompliance.
Nitto has additionally informed NHTSA that it has corrected the noncompliance so that future production of the subject tires will comply with all applicable labeling requirements of FMVSS No. 139.
In summation, Nitto believes that the described noncompliance of the subject tires is inconsequential to motor vehicle safety, and that its petition, to exempt Nitto from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to
49 U.S.C. 30118, 30120: Delegations of authority at 49 CFR 1.95 and 501.8.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (OFAC) is publishing the name of one individual whose property and interests in property are blocked pursuant to Executive Order 13581 of July 24, 2011, “Blocking Property of Transnational Criminal Organizations.”
The designations by the Director of OFAC, pursuant to Executive Order 13581, of the one individual identified in this notice were effective on December 9, 2015.
Assistant Director, Sanctions Compliance and Evaluation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: 202-622-2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
On July 24, 2011, the President issued Executive Order 13581, “Blocking Property of Transnational Criminal Organizations” (the “Order”), pursuant to,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, that come within the United States, or that are or come within the possession or control of any United States person, of persons listed in the Annex to the Order and of persons determined by the Secretary of the Treasury, in consultation with the Attorney General and the Secretary of State, to satisfy certain criteria set forth in the Order.
On December 9, 2015, the Director of OFAC, in consultation with the Attorney General and the Secretary of State, designated, pursuant to one or more of the criteria set forth in subparagraphs (a)(ii)(A) through (a)(ii)(C) of Section 1 of the Order, one individual whose property and interests in property are blocked pursuant to the Order.
The listing for this individual on OFAC's List of Specially Designated Nationals and Blocked Persons appears as follows:
Department of Veterans Affairs.
Notice; withdrawal.
The Department of Veterans Affairs published collection of information notices in a
Brian McCarthy at (202) 461-6345.
The
By direction of the Secretary.
Department of Veterans Affairs.
Notice.
This Department of Veterans Affairs (VA) notice updates the data for calculating the “Reasonable Charges” collected or recovered by VA for medical care or services. This notice also updates the “National Average Administrative Costs” for purposes of calculating VA's charges for prescription drugs that were not administered during treatment but provided or furnished by VA to a veteran.
Romona Greene, Chief Business Office 10NB, Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 382-2521. This is not a toll free number.
Section 17.101 of 38 Code of Federal Regulations sets forth the “Reasonable Charges” for medical care or services provided or furnished by VA to a veteran: “For a nonservice-connected disability for which the veteran is entitled to care (or the payment of expenses for care) under a health plan contract; For a nonservice-connected disability incurred incident to the veteran's employment and covered under a worker's compensation law or plan that provides reimbursement or indemnification for such care and services; or For a nonservice-connected disability incurred as a result of a motor vehicle accident in a state that requires automobile accident reparations insurance.” Section 17.101 provides the methodologies for establishing billed amounts for several types of charges; partial hospitalization facility charges; outpatient facility charges; physician and other professional charges, including professional charges for anesthesia services and dental services; pathology and laboratory charges; observation care facility charges; ambulance and other emergency transportation charges; and charges for durable medical equipment, drugs, injectables, and other medical services, items, and supplies identified by Healthcare Common Procedure Coding System (HCPCS) Level II codes.
Section 17.101 provides that the actual charge amounts at individual VA facilities based on these methodologies and the data sources used for calculating those actual charge amounts will either be published as a notice in the
In cases where VA has not established charges for medical care or services provided or furnished at VA expense (by either VA or non-VA providers) under other provisions or regulations, the method for determining VA's charges is set forth at 38 CFR 17.101(a)(8).
Based on the methodologies set forth in § 17.101, this notice provides an update to charges for 2016 HCPCS Level II and Current Procedural Terminology (CPT) codes. Charges are also being updated based on more recent versions of data sources for the following charge types: Partial hospitalization facility charges; outpatient facility charges; physician and other professional charges, including professional charges for anesthesia services and dental services; pathology and laboratory charges; observation care facility charges; ambulance and other emergency transportation charges; and charges for durable medical equipment, drugs, injectables, and other medical services, items, and supplies identified by HCPCS Level II codes. As of the date of this notice, the actual charge amounts at individual VA facilities based on the methodologies in § 17.101 will be posted at
The list of data sources used for calculating the actual charge amounts listed above also will be posted at
Acute inpatient facility charges and skilled nursing facility/sub-acute inpatient facility charges remain the same as set forth in the notice published in the
We are also updating the list of VA medical facility locations. The list of VA medical facility locations, including the first three digits of their zip codes as well as provider based/non-provider based designations, will be posted on the Internet site of the Veterans Health Administration Chief Business Office, currently at
As indicated in 38 CFR 17.101(m), when VA provides or furnishes prescription drugs not administered during treatment, “charges billed separately for such prescription drugs will consist of the amount that equals the total of the actual cost to VA for the drugs and the national average of VA administrative costs associated with dispensing the drugs for each prescription.” Section 17.101(m) includes the methodology for calculating the national average administrative cost for prescription drug charges not administered during treatment.
VA determines the amount of the national average administrative cost annually for the prior fiscal year (October through September) and then applies the charge at the start of the next calendar year. The national average administrative drug cost for calendar year 2016 is $14.29. This change will be posted at
Consistent with § 17.101, the national average administrative cost, the updated data tables, and supplementary tables containing the changes described in this notice will be posted online, as indicated in this notice. This notice will be posted at
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Nabors II, Chief of Staff, Department of Veterans Affairs, approved this document on November 30, 2015, for publication.
Environmental Protection Agency (EPA).
Final rule.
Under section 211 of the Clean Air Act, the Environmental Protection Agency (EPA) is required to set renewable fuel percentage standards every year. This action establishes the annual percentage standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel that apply to all motor vehicle gasoline and diesel produced or imported in the years 2014, 2015, and 2016. The EPA is establishing a cellulosic biofuel volume for all three years that is below the applicable volume specified in the Act, and is also rescinding the cellulosic biofuel standard for 2011. Relying on statutory waiver authorities, the EPA is adjusting the applicable volumes of advanced biofuel and total renewable fuel for all three years. The 2016 standards are expected to spur further progress in overcoming current constraints in renewable fuel distribution infrastructure, which in turn is expected to lead to substantial growth over time in the production and use of renewable fuels. In this action, we are also establishing the applicable volume of biomass-based diesel for 2017. Finally, we are setting the compliance and attest reporting deadlines for the years 2013, 2014, and 2015, as well as finalizing regulatory amendments to clarify the scope of the existing algal biofuel pathway.
This final rule is effective on February 12, 2016.
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2015-0111. All documents in the docket are listed on the
Julia MacAllister, Office of Transportation and Air Quality, Assessment and Standards Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number: 734-214-4131; email address:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria in 40 CFR part 80. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the
The Renewable Fuel Standard (RFS) program began in 2006 pursuant to the requirements in Clean Air Act (CAA) section 211(o) that were added through the Energy Policy Act of 2005 (EPAct). The statutory requirements for the RFS program were subsequently modified through the Energy Independence and Security Act of 2007 (EISA), resulting in the publication of major revisions to the regulatory requirements on March 26, 2010.
The fundamental objective of the RFS provisions under the CAA is clear: To increase the use of renewable fuels in the U.S. transportation system every year through at least 2022 in order to reduce greenhouse gases (GHGs) and increase energy security. Further, renewable fuels from facilities that commenced construction after 2007 must be better performing in terms of their greenhouse gas emissions, as compared on a lifecycle basis, to the petroleum based fuels they are replacing. Cellulosic biofuels are required to have 60 percent or greater greenhouse gas (GHG) emissions benefits on a lifecycle basis than the petroleum based fuels they replace; advanced biofuels (including biomass-based diesel) must have a 50 percent or greater benefit; and conventional biofuels (other than grandfathered facilities) must have a 20 percent or better benefit. Increased use of renewable fuels means less use of fossil fuels, which generally results in lower GHG emissions over time, especially when advanced biofuel production and use becomes more commonplace. By aiming to diversify the country's fuel supply, Congress also intended to increase the nation's energy security. Renewable fuels represent an opportunity for the U.S. to move away from fossil fuels towards a set of lower GHG transportation fuels, and a chance for a still-developing low GHG technology sector to grow. These lower GHG renewable fuels include corn starch ethanol, the predominant renewable fuel in use to date, but Congress envisioned the majority of growth over time to come from advanced biofuels, as the non-advanced (conventional) volumes remain constant in the statutory volume tables starting in
The statute includes annual volume targets,
In the June 10, 2015 notice of proposed rulemaking (NPRM), we proposed standards based on an approach that sought to achieve the Congressional intent of increasing renewable fuel use over time in order to address climate change and increase energy security, while at the same time accounting for the real-world challenges that have slowed progress toward such goals.
In this action, we are finalizing standards that make use of the statute's waiver provisions. The final standards differ from the proposed standards based on new information, consideration of public comments, and corrected calculations. Details of these changes are provided below. By finalizing the percentage standards for 2016 by November 30, 2015, we are returning to the statutory timeline for issuing standards under the RFS program.
We received a substantial number of comments on our proposed use of the statute's waiver authorities, with commenters both supporting and opposing our approach. In addition to comments on our proposed use of waiver authorities, we received comments on multiple other areas of the proposal, including our proposed treatment of carryover RINs, our proposed approach to determining the volume requirements, and other areas. We address these comments in this preamble as well as in a response-to-comment (RTC) document, which can be found in the docket for this action.
While we are using the statutory waiver authorities in establishing final 2014, 2015, and 2016 standards for cellulosic biofuel, advanced biofuel, and total renewable fuel, as we proposed to do, the volumes we are finalizing differ from the proposed volumes in order to reflect updated and corrected information, and to provide year-to-year growth consistent with the statute's intent. Key corrections and updates include:
• Updating our assessment of volumes of renewable fuel that can be blended at various concentrations into petroleum fuel and our calculation of all of the percentage standards to take into account changes in EIA's projected gasoline and diesel demand for 2016.
• Correcting an error in determining actual volumes of ethanol supplied in 2014. EPA acknowledged this error in July 2015 by placing a memo in the docket.
• Accounting for higher than expected supply of biodiesel and renewable diesel in 2015, providing a basis for expecting similar growth in biodiesel and renewable diesel volumes in 2016.
For 2016, we are finalizing volume requirements that are significantly higher than proposed, and that represent significant growth compared to actual renewable fuel use in 2015. While some stakeholders commented that reductions from the statutory targets would lead to a stagnation in growth, we disagree with this view. We proposed a 2016 volume requirement for total renewable fuel that was 1.1 billion gallons greater than the proposed 2015 volume requirement—a significant level of growth in one year. Our final 2016 volume requirements are also ambitious, with substantial growth in all four categories relative to 2015. We are also setting a final volume requirement for BBD for 2017 that continues the growth in that category of renewable fuel. The final volume requirements are shown in Table I-1 below.
Our decision to finalize volumes for total renewable fuel that rely on exercising the general waiver authority is based on the same fundamental reasoning we relied upon in the June 10, 2015 proposal. Despite significant increases in renewable fuel use in the United States, real-world constraints, such as the slower than expected development of the cellulosic biofuel industry and constraints in the marketplace needed to supply certain biofuels to consumers, have made the timeline laid out by Congress impossible to achieve. These challenges remain, even as we recognize the success of the RFS program over the past decade in boosting renewable fuel use, and the recent signs of progress towards development of increasing volumes of advanced, low GHG-emitting fuels, including cellulosic biofuels.
We believe that the RFS program can and will drive renewable fuel use and, indeed, we have considered the ability of the market to respond to the standards we set when we assessed the
The final volume requirements will push the fuels sector to produce and blend more renewable fuels in 2016 in a manner that is consistent with the goals Congress envisioned. The final volumes are less than the statutory targets for 2016 but higher than what the market would produce and use in the absence of such market-driving standards. The 2016 standards are expected to spur further progress in overcoming current challenges and lead to continued growth in the production and use of qualifying renewable fuels, including higher-level ethanol blends. In this regard the final standards are intended to fulfill the spirit and intent of Congress and provide guidance to market participants.
Various commenters in the biofuels industry disagreed with our assessment that the approach described in the NPRM, in which we proposed to reduce the statutory targets using the available waiver authorities, would nevertheless support growth in renewable fuels. We address these comments throughout this document and the response to comments (RTC) document. We emphasize, however, that our fundamental goal is to implement the RFS program in such a way as to promote growth of renewable fuel use over time. We have conducted significant technical analysis, both in the proposed rule and in this final rule, to better understand and characterize the renewable fuels market and the RFS program, all in an effort to implement the program on a schedule that matches as nearly as possible that set forth in the statute.
The RFS program can be thought of as a market forcing policy. The objective of the program is to introduce increasing volumes of renewable fuels, with a focus on cellulosic and other advanced renewable fuels, into the marketplace. Congress made the decision that this is an appropriate policy objective, and put in place a program to achieve that policy goal. A key issue in implementing any program designed to advance new technologies and increase use of existing technologies, however, is the question of lead time. Technologies are typically phased in over time—in many cases over many years—to allow for the development of the technology and the steady growth in penetration of that technology into the marketplace. New technologies do not typically start at 90 or 100 percent penetration rates; they can take time to overcome investment, technical, and market hurdles to their development, deployment and use. The greater the number and type of these challenges, the longer the lead time must be to achieve the desired policy goal. In establishing the RFS program, Congress not only recognized that biofuels would need to phase in over time, and thus established a ramp-up of renewable fuel volume targets over time, but also established provisions in the law allowing EPA to waive in whole or in part implementation of those targets under certain circumstances. Our exercising of those waiver authorities is not an attempt to undermine program growth, as some commenters argue, but rather a recognition of real world constraints that necessitate an adaptive approach to managing the program. Growth will, and must, continue under the law, but Congress recognized that in some cases, driving the introduction of a new technology requires an acknowledgment that new technologies can in some cases require longer lead times to achieve success. Trying to force growth at rates that prove infeasible would only undermine the certainty in the RFS program that is needed to sustain long-term growth.
As stated in the NPRM, this final rule comes during a period of transition for the RFS program. In the program's early years, compliance with the advanced biofuel and total renewable volume requirements could be readily achieved in large part by blending increasing amounts of ethanol into gasoline and biodiesel into diesel fuel. As the program progresses, however, significantly increasing renewable fuel volumes will require pushing beyond current constraints on ethanol and biodiesel use and will require sustained growth in the development and use of advanced, non-ethanol renewable fuels, including drop-in renewable fuels. This final rule acknowledges this transition by finalizing volume requirements based not only on the volumes of renewable fuels that have already been achieved in 2014 and the months in 2015 leading up to this final action, but also on the volumes that can be supplied in 2016 as the market addresses infrastructure and other constraints. Our final rule includes volumes of renewable fuel that will require either ethanol use at levels significantly beyond the level of the E10 blendwall, or significantly greater use of non-ethanol renewable fuels, such as biodiesel and renewable diesel, than has occurred to date, depending on how the market responds to the standards we set. The standards we are finalizing are consistent with the purpose of the statute: to significantly increase the amount of renewable fuel used in the supply of transportation fuel over time, particularly renewable fuels with the lowest lifecycle GHG emissions.
Since the amount of renewable fuel that can be produced and imported is larger than the volume that can be consumed due to limited demand for transportation fuel and constraints on supply of renewable fuels to vehicles and engines, there is necessarily competition among biofuels for retail consumption in the United States. In setting the biomass-based diesel volume requirement we have worked to achieve an appropriate and reasonable balance between setting a volume requirement that would provide support for the established BBD industry, while also providing opportunities under the
As indicated in the NPRM, in establishing the standards for 2014, we must acknowledge that the compliance year has passed and any standard EPA sets for 2014 can no longer influence renewable fuel production or use in that year. Therefore, we are issuing a final rule for 2014 that reflects those volumes of renewable fuel that were actually supplied in 2014. Details regarding how we calculated the final “actual” volumes used in 2014 are discussed in Section II.C below.
With regard to 2015, the proposed volume requirements were based in part on actual volumes supplied in the first part of the year, and in part based on a determination of growth that was possible (and which could be incentivized through the NPRM) in the balance of the year. Actual data on supply after release of the June 10, 2015 NPRM indicates that the market responded to the NPRM by increasing supply in comparison to the period prior to the release of the NPRM. The final standards for 2015 have been set based on updated production and consumption data available as of issuance of this final rule, and a projection of what is expected to be produced and used through the end of 2015, taking into account the inability of the market to respond to this final action in light of the little time remaining in the year.
For 2016, our approach is to set final volumes that take into account both the constraints in the supplies that exist, and the ability of the RFS program to incentivize growth. Where appropriate we also take into consideration other factors such as the impact of the BBD standard on incentivizing the production and use of other advanced biofuels, and the benefits provided by advanced biofuels in backfilling some of the volume that Congress envisioned would be provided in 2016 by cellulosic biofuels.
This final rule represents EPA's commitment and continued support for steady growth in renewable fuel use. We recognize that the RFS standards are only one element among many that factor into the success of renewable fuel development and use over time. The standards that EPA sets each year are an important part of the overall picture, but this program is complemented and supported by programs managed by the U.S. Departments of Agriculture (USDA) and Energy (DOE), as well as myriad of efforts and initiatives at the regional and local level and within the private sector. DOE has invested considerable resources to help deploy the advanced technologies needed to achieve the statutory aims of lower carbon fuels, and has leveraged several billion dollars more in private support for development of advanced renewable fuels. USDA's Biofuel Infrastructure Partnership program will provide $100 million in grants for the expansion of renewable fuel infrastructure, and their Biorefinery Assistance Program has provided loan guarantees for the development and construction of commercial scale biorefineries with a number of the new projects focused on producing fuels other than ethanol. Greater GHG benefits are expected to be realized as the production and use of advanced biofuels accelerates, and the volume requirements that we are finalizing support this goal.
The national volume targets of renewable fuel that are intended to be achieved under the RFS program each year (absent an adjustment or waiver by EPA) are specified in CAA section 211(o)(2). The statutory volumes for 2014, 2015, and 2016 are shown in Table I.A-1. The cellulosic biofuel and BBD categories are nested within the advanced biofuel category, which is itself nested within the total renewable fuel category. This means, for example, that each gallon of cellulosic biofuel or BBD that is used to satisfy the individual volume requirements for those fuel types can also be used to satisfy the requirements for advanced biofuel and total renewable fuel.
Under the RFS program, EPA is required to determine and publish annual percentage standards for each compliance year. The percentage standards are calculated to ensure use in transportation fuel of the national “applicable volumes” of the four types of biofuel (cellulosic biofuel, BBD, advanced biofuel, and total renewable fuel) that are set forth in the statute or established by EPA in accordance with the Act's requirements. The percentage standards are used by obligated parties (generally, producers and importers of gasoline and diesel fuel) to calculate their individual compliance obligations. Each of the four percentage standards is applied to the volume of non-renewable gasoline and diesel that each obligated party produces or imports during the specified calendar year to determine their individual volume obligations with respect to the four renewable fuel types. The individual volume obligations determine the number of RINs of each renewable fuel type that each obligated party must acquire and retire to demonstrate compliance.
Today EPA is establishing the annual applicable volume requirements for cellulosic biofuel, advanced biofuel, and total renewable fuel for 2014, 2015, and 2016, and for BBD for 2014, 2015, 2016,
By
As shown in Table I.A-2, the statutory authorities that provide direction to EPA for how to modify or set the applicable standards differ for the four categories of renewable fuel. Under the statute, EPA must annually determine the projected volume of cellulosic biofuel production for the following year. If the projected volume of cellulosic biofuel production is less than the applicable volume specified in section 211(o)(2)(B)(i)(III) of the statute, EPA must lower the applicable volume used to set the annual cellulosic biofuel percentage standard to the projected volume of production during the year. In Section IV of this final rule, we present our analysis of cellulosic biofuel production and the final applicable volumes for 2014, 2015, and 2016. This analysis is based on an assessment of actual cellulosic biofuel supply in 2014 and parts of 2015, estimates from EIA, an evaluation of producers' production plans and progress to date following discussions with cellulosic biofuel producers, and review of comments we received in response to the NPRM.
With regard to BBD, CAA section 211(o)(2)(B) specifies the applicable volumes of BBD to be used in the RFS program only through year 2012. For subsequent years the statute sets a minimum volume of 1 billion gallons, and directs EPA to set the required volume after review of the renewable fuels program, consultation with USDA and DOE as well as consideration of a number of factors. In Section III of this preamble we discuss our assessment of statutory and other relevant factors and our final volume requirements for BBD for 2014, 2015, 2016, and 2017. We are finalizing growth in the required volume of BBD in such a way that both the BBD market and other advanced biofuels will grow.
Regarding advanced biofuel and total renewable fuel, Congress provided several mechanisms through which
• Substantial limitations in the supply of cellulosic biofuel,
• Insufficient supply of other advanced biofuel to offset the shortfall in cellulosic biofuel, and
• Practical and legal constraints on the ability of the market to supply renewable fuels to the vehicles that can use them.
We believe these realities justify the exercise of the authorities Congress provided us to waive the statutory volumes. At the same time, we are mindful that the primary objective of the statute is to increase renewable fuel use over time. For the total renewable fuel requirement in this rule, we are using the waiver authorities only to the extent necessary to derive applicable volumes that reflect the maximum supply that can reasonably be expected to be produced and consumed by a market that is responsive to the RFS standards. This is a very challenging task not only in light of the myriad complexities of the fuels market and how individual aspects of the industry might change in the future, but also because we cannot precisely predict how the market will respond to the volume-driving provisions of the RFS program. Thus the determination of the final total renewable fuel volume requirement is one that we believe necessarily involves considerable exercise of judgment. Based on our assessment of available renewable fuel supply, and after consultation with the Departments of Agriculture and Energy, we believe that adjustments to the statutory targets for total renewable fuel are warranted for 2014, 2015, and 2016. While the final volume requirements for 2014 and 2015 are either equal to actual supply or (for 2015) a projection from actual supply, the volume requirement for 2016 will lead to growth in supply beyond the levels achieved in the past, based on the expectation that the market can and will respond to the standards we set.
For the advanced biofuel volume requirements, we are using the cellulosic waiver authority to derive a volume requirement for 2014 that is based on actual supply; a volume requirement for 2015 that is based on actual supply during months for which data are available, and a projection from those levels for the remaining months in the year; and a volume requirement for 2016 that is reasonably attainable and which to a significant extent will result in backfilling the shortfall in cellulosic biofuel volumes with other advanced biofuels that also provide substantial GHG emission reductions.
This section briefly summarizes the major provisions of this final rule. We are establishing applicable volume requirements for cellulosic biofuel, BBD, advanced biofuel, and total renewable fuel for 2014, 2015, and 2016, as well as the applicable volume requirement for BBD for 2017. This action also includes a final response to several requests we received in 2013 for a waiver of the 2014 standards. We are also finalizing an amendment to the regulations designed to clarify the scope of the algal biofuel pathway. Finally, we are establishing new deadlines for annual compliance reporting and attest reporting for the 2013, 2014 and 2015 compliance years.
Because 2014 has passed, this final rule cannot alter the volumes of renewable fuel produced and consumed during 2014. We believe it is appropriate, therefore, that the standards we establish for 2014 reflect the actual supply of renewable fuel in 2014. Although we believe that the standards we set for advanced biofuel and total renewable fuel must be ambitious to be consistent with the intent of Congress in establishing the RFS program, we also recognize that the final standards we set cannot affect the past. Therefore, in this action we are basing the applicable volume requirements for 2014 on actual renewable fuel use, as determined by data on the number of Renewable Identification Numbers (RINs) generated from the EPA-Moderated Transaction System (EMTS), minus the number of RINs retired to account for renewable fuel export as reported by the Census Bureau, or retired for other purposes unrelated to demonstrating compliance with the annual standards as reported through EMTS.
For the 2015 standards, we proposed volume requirements in the June 10, 2015 NPRM that projected growth in renewable fuel use over the calendar year, even though the proposed volume requirements were issued mid-way through the year. The market appears to have responded to the proposal as monthly supply after the NPRM was about 5% higher than monthly supply before the NPRM. We believe that the final rule, however, will be issued too late in the year to have any further effect on supply in 2015. Therefore, in deriving the final 2015 volume requirements we used the data on actual
For 2016, our final volume requirements are issued on the statutory schedule, allowing the full compliance year for obligated parties and the market to react to the standards we set. Therefore, we assume that the standards can influence greater renewable fuel use than would be the case in the absence of the standards. For advanced biofuel and total renewable fuel, our assessment of 2016 supply simultaneously reflects the statute's purpose to drive growth in renewable fuels, while also accounting for constraints in the market that make the volume targets specified in the statute beyond reach, as described more fully in Section II. Our determination regarding the BBD volume requirement has been based on consultation with USDA and DOE and an analysis of a set of factors stipulated in CAA section 211(o)(2)(B)(ii), as described in more detail in Section III. Finally, as described in Section IV, the cellulosic biofuel volume requirement is based on a projection of production in 2016 that reflects a neutral aim at accuracy.
Since the EISA-amended RFS program began in 2010, we have reduced the applicable volume of cellulosic biofuel each year in the context of our annual RFS standards rulemakings to the projected production levels, and we have considered whether to also reduce the advanced biofuel and total renewable fuel statutory volumes pursuant to the waiver authority in section 211(o)(7)(D)(i). In the past we have determined that reductions in the statutory targets for advanced biofuel and total renewable fuel were not necessary. However, for 2014 and later years this is not the case. For 2014, this final rulemaking is too late to influence the market, and renewable fuel supply must necessarily be determined based on historical data. This is also largely the case for 2015, though we have included a projection for the latter part of the year for which data on actual use is not available. For both of these years, the supply of advanced and total renewable fuels was insufficient to satisfy the statutory targets.
For 2016 we have determined that the volume of ethanol in the form of E10 or higher ethanol blends that can be supplied to vehicles, together with the volume of non-ethanol renewable fuels that can be supplied to vehicles, is insufficient to attain the statutory targets for both total renewable fuel and advanced biofuel. As a result, we are using the waiver authorities provided in CAA section 211(o)(7) to set lower volume requirements for these renewable fuel categories in 2016. We expect future standards to both reflect and anticipate progress of the industry and market in providing for continued expansion of the supply of renewable fuels.
Our determination in this final rule that the required volumes of advanced biofuel and total renewable fuel should be reduced from the statutory targets is based on a consideration of the ability of the market to supply such fuels through domestic production or import; the ability of available renewable fuels to be used as transportation fuel, heating oil, or jet fuel; and the ability of the standards to bring about market changes in the time available.
We have established applicable volumes for advanced biofuel and total renewable fuel for 2016 that would result in significant volume growth over the levels supplied in previous years. Moreover, the 2016 volume requirement for total renewable fuel is, in our judgment, as ambitious as can reasonably be justified, and reflects the growth rates that can be attained under a program explicitly designed to compel the market to respond. The advanced biofuel volume requirement is set at a level that will allow reasonably attainable volumes of advanced biofuel to backfill for missing cellulosic biofuel volumes.
As for advanced and total renewable fuel in 2014 and 2015, we believe that it is appropriate to establish the 2014 and 2015 volume requirements of BBD to reflect actual supply (including a projection for the latter part of 2015 that is primarily based on supply in the earlier part of the year for which data is available). For 2016 and 2017, to preserve the important role that BBD plays in the RFS program, as well as to support the volume requirements for advanced biofuel, we believe that it is appropriate to increase the BBD volume requirement for each year. However, we also believe that it is of ongoing importance that opportunities for other types of advanced biofuel, such as renewable diesel co-processed with petroleum, renewable gasoline blendstocks, and renewable heating oil, as well as others that are under development be incentivized and expanded. Thus, based on a review of the implementation of the program to date and all the factors required under the statute, we are not only finalizing the 2014 and 2015 BBD volume requirement at the actual volumes of 1.63 and 1.73 billion gallons,
The cellulosic biofuel industry continues to transition from research and development (R&D) and pilot scale operations to commercial scale facilities, leading to significant increases in production capacity. RIN generation from the first commercial scale cellulosic biofuel facility began in March 2013. Cellulosic biofuel production increased substantially in 2014, with over 33 million gallons in that year. This volume included a significant number of cellulosic biofuel RINs generated for cellulosic CNG/LNG from biogas through a new pathway approved by EPA in 2014.
As part of estimating the volume of cellulosic biofuel that will be made available in the U.S. in 2015 and 2016, we researched all potential production sources by company and facility. This included sources still in the planning stages, facilities under construction, facilities in the commissioning or start-up phases, and facilities already producing some volume of cellulosic biofuel. Facilities primarily focused on R&D were not the focus of our assessment, as production from these facilities represents very small volumes of cellulosic biofuel, and these facilities typically have not generated RINs for the fuel they have produced. From this universe of potential cellulosic biofuel sources, we identified the subset that is expected to produce commercial volumes of qualifying cellulosic biofuel for use as transportation fuel, heating oil, or jet fuel by the end of 2016. To arrive at projected volumes, we collected relevant information on each facility. We then developed projected production ranges based on factors such as the current and expected state of funding, the status of the technology being used, progress towards construction and production goals, facility registration status, production volumes achieved, and other significant factors that could potentially impact fuel production or the ability of the produced fuel to qualify for cellulosic biofuel RINs. We also used this information to group these companies based on production history and to select a value within the aggregated projected production ranges that we believe best represents the most likely production volumes from each group for each year. EPA also received a projection of liquid cellulosic biofuel production in 2016 from EIA, which helped form the basis of our production for these types of cellulosic biofuels. Further discussion of these factors and the way they were used to determine our final cellulosic biofuel projections for 2014, 2015, and 2016 can be found in Section IV.
The renewable fuel standards are expressed as a volume percentage and are used by each producer and importer of fossil-based gasoline or diesel to determine their renewable fuel volume obligations. The percentage standards are set so that if each obligated party meets the standards, and if EIA projections of gasoline and diesel use for the coming year prove to be accurate, then the amount of renewable fuel, cellulosic biofuel, BBD, and advanced biofuel actually used will meet the volumes required on a nationwide basis.
Four separate percentage standards are required under the RFS program, corresponding to the four separate renewable fuel categories shown in Table I.A-1. The specific formulas we use in calculating the renewable fuel percentage standards are contained in the regulations at 40 CFR 80.1405 and repeated in Section V.B.1. The percentage standards represent the ratio of renewable fuel volume to projected non-renewable gasoline and diesel volume. The volume of transportation gasoline and diesel used to calculate the final percentage standards was provided by EIA. The final percentage standards for 2014, 2015, and 2016 are shown in Table I.B.5-1. Detailed calculations can be found in Section V, including the projected gasoline and diesel volumes used.
Concurrently with the November 29, 2013, proposed rule for 2014 RFS standards, we also published a separate
The petitions generally asserted that for 2014 there is an inadequate domestic supply of renewable fuel and therefore RINs, due both to the E10 blendwall and constraints on the supply of higher-level ethanol blends, and of non-ethanol renewable fuels. Many of the petitioners argued that this inadequate supply of renewable fuel (and RINs) will lead to an inadequate supply of gasoline and diesel, because refiners and importers, faced with a shortage of RINs, will reduce their production of gasoline and diesel for the domestic market. They argued that this will in turn severely harm the economy.
As calendar year 2014 has passed, we believe it is appropriate to set the applicable volume requirements at the volumes that were actually supplied in 2014. We do not believe that use of 2014 renewable fuel volumes severely harmed the economy, and we believe that it is straightforward to conclude that there was an adequate supply of the volumes of renewable fuel that were actually used in 2014. For total renewable fuel, cellulosic biofuel and advanced biofuels, this approach results in volume requirements as close to the statutory volume targets as possible absent using the availability of carryover RINs as a justification for setting higher requirements. We considered that option, but, as described in detail in Section II.H., we do not interpret carryover RINs to be part of the “supply” of renewable fuel for purposes of assessing whether an inadequate domestic supply exists to justify a waiver under section 211(o)(7)(A) and, although they are a relevant consideration in determining whether or not we should exercise our discretion to grant a waiver under either the general waiver authority or the cellulosic waiver authority, we have determined that the current bank of carryover RINs serves important program functions, and that the requirements for 2014-2016 should not be intentionally set at levels that would require a draw-down in the current bank of carryover RINs. We also considered, given the late nature of this rulemaking with respect to 2014, the possibility of setting the 2014 requirements at the levels originally proposed in November 2013, as suggested by some obligated party commenters that asserted that they used those proposed levels for planning purposes. However, we do not believe it would have been reasonable for obligated parties to assume that the November 2013 proposed volumes would be finalized unchanged. The statutory volume targets for cellulosic biofuel, advanced biofuel and total renewable fuel, as well as NPRM preamble statements for these fuels and biomass-based diesel, clearly provided notice to obligated parties that the final volume requirements could be substantially different than proposed. Nevertheless, we have extended the 2014 compliance demonstration deadline to allow such parties additional time to acquire the RINs needed for compliance. In light of all of these considerations, we have determined that it is appropriate to establish volume requirements for 2014 that reflect actual renewable fuel supply in that year.
To the extent that EPA's independent action to reduce statutory volumes satisfies the petition requests, those requests are now moot and EPA is taking no further action with respect to them. EPA is denying the waiver petitions to the extent they seek differing reductions in applicable volumes than are set forth in this final rule. We believe it is unnecessary to evaluate concerns raised by certain petitioners that implementation of the statutory applicable volumes would cause severe economic harm, since such concerns were predicated on underlying concerns of inadequate domestic supply and such supply concerns are directly addressed by this final rule.
In addition to finalizing the aforementioned volume requirements and associated percentage standards, we are also finalizing amendments to the RFS requirements to address two issues. First, we are finalizing changes with respect to the previously-approved algal oil pathways in Table 1 to 40 CFR 80.1426 to clarify that only biofuels produced from oil from algae grown photosynthetically qualify for the RFS program under the algal oil pathways in Table 1 to 40 CFR 80.1426. Since EPA assumed that algae would be grown photosynthetically when it evaluated the lifecycle greenhouse gas emissions associated with the existing algal oil pathways, we are clarifying the regulatory description of these pathways to align with EPA's technical assessment and interpretation of the scope of the pathways.
We are aware of companies that plan to produce biofuels from algae that use non-photosynthetic types of metabolism. Companies wishing to produce biofuels from algae grown with a non-photosynthetic stage of growth must apply to EPA for approval of their pathway pursuant to 40 CFR 80.1416. EPA has not conducted a full lifecycle GHG analysis of emissions associated with biofuel produced using non-photosynthetic algae. Such analysis would need to be completed in order to determine whether fuels produced using these microorganisms meet the lifecycle GHG threshold for advanced biofuels.
We are also finalizing revisions to the annual compliance reporting deadlines for obligated parties and renewable fuel exporters, and the attest engagement reporting deadlines for obligated parties, RIN-generating renewable fuel producers and importers, other parties holding RINs, renewable fuel exporters, and independent third-party auditors for the 2013, 2014, and 2015 compliance years. The deadlines vary for each of these parties depending on the applicable compliance period, and some parties will be required to submit partial annual reports representing a portion of the 2014 compliance year. A detailed description of our changes to reporting deadlines can be found in Section VI.B.
By November 30 of each year we are required to assess the status of the aggregate compliance approach to land-use restrictions under the definition of renewable biomass for both the U.S. and Canada. In today's action we are providing the final announcements for these administrative actions.
As part of the RFS regulations, EPA established an aggregate compliance approach for renewable fuel producers who use planted crops and crop residue from U.S. agricultural land. This compliance approach relieved such producers (and importers of such fuel) of the individual recordkeeping and reporting requirements otherwise required of producers and importers to verify that such feedstocks used in the production of renewable fuel meet the definition of renewable biomass. EPA determined that 402 million acres of U.S. agricultural land was available in 2007 (the year of EISA enactment) for production of crops and crop residue that would meet the definition of renewable biomass, and determined that as long as this total number of acres is not exceeded, it is unlikely that new land has been devoted to crop production based on historical trends and economic considerations. We indicated that we would conduct an annual evaluation of total U.S. acreage that is cropland, pastureland, or conservation reserve program land, and that if the value exceed 402 million
On September 29, 2011, EPA approved the use of a similar aggregate compliance approach for planted crops and crop residue grown in Canada. The Government of Canada utilized several types of land use data to demonstrate that the land included in their 124 million acre baseline is cropland, pastureland or land equivalent to U.S. Conservation Reserve Program land that was cleared or cultivated prior to December 19, 2007, and was actively managed or fallow and non-forested on that date (and is therefore RFS2 qualifying land). As described in Section VII.B, based on data provided by Canada, we have estimated that Canadian agricultural land did not exceed the 2007 baseline acreage in 2013, 2014, or 2015. This assessment means that the aggregate compliance provision can continue to be used in Canada for calendar years 2014, 2015, and 2016.
Under CAA section 211(o)(3)(B)(i), EPA must determine and publish the annual percentage standards by November 30 of the preceding year, and under CAA section 211(o)(3)(B)(ii) it must establish applicable volumes for biomass-based diesel 14 months in advance of the corresponding compliance year. EPA did not meet these statutory deadlines for the 2014 and 2015 percentage standards, or for the BBD applicable volumes established in this rule. Nevertheless, the percentage standards established through this rulemaking will apply to all gasoline and diesel produced or imported in calendar years 2014, 2015, or 2016 as applicable, and the 2017 applicable volume will form the basis for the BBD percentage standard that is required by statute to be established by November 30, 2016, that will apply to all biodiesel produced or imported in 2017.
We acknowledge that this rule is being finalized later than the statutory deadlines noted above. However, the statute requires that EPA established percentage standards applicable to each calendar year, and applicable volumes for BBD, and we do not believe we are relieved of these obligations by missing the statutory deadlines. Moreover, parties have been producing and using renewable fuels, and generating and acquiring RINs for compliance even in the absence of the annual standards being in place, with the expectation that the requirements would ultimately be finalized. We believe it is important not to upset these reasonable expectations, both for the parties involved and for the long-term integrity of the RFS program. The delay does not deprive EPA of authority to issue applicable volumes and standards for these calendar years. The United States Court of Appeals for the District of Columbia Circuit upheld the 2013 RFS standards even though they were issued more than eight months after statutory deadline.
EPA is exercising its authority to issue standards applicable to past time periods in a reasonable way. Thus, for 2014, EPA is establishing renewable fuel obligations that reflect actual renewable fuel used as transportation fuel, heating oil, or jet fuel during that time period, and the final August 1, 2016 compliance deadline for 2014 (which is two months later than proposed) will allow time for obligated parties to complete necessary transactions to meet obligations. For 2015 we are similarly taking into account actual renewable fuel use during the time that has already passed in 2015, and establishing an extended compliance demonstration deadline of December 1, 2016—a full year after signature of today's rule, and 11 months after the close of the 2015 compliance period. Renewable fuel producers generated RINs throughout 2014, and have also been generating 2015 RINs since the beginning of the calendar year. To varying degrees, obligated parties have been acquiring RINs since the beginning of 2014 in anticipation of the final volume requirements and standards. While we acknowledge the uncertainty that the market has experienced due to the delay, our final rule bases the applicable volume requirements for 2014 and 2015 on an assessment of past production. As a result, there will be an adequate quantity of RINs available to satisfy those portions of the final requirements. In addition, there are a number of program flexibilities that will facilitate compliance. There is a bank of carryover RINs that will make the RIN market more fluid, and facilitate the acquisition of RINs that can be used to comply with the 2014 RVOs. That same bank of carryover RINs can be rolled forward to assist in compliance with 2015 and 2016 requirements. We acknowledge that there is a theoretical possibility that parties that accumulate RINs through their own blending activities could decide to bank the maximum quantity of RINs for their own future use or for future sale, and that if this practice were widespread that there could be a shortfall in available RINs for parties who do not engage in renewable fuel blending activities themselves and have not entered into sufficient contracts with blenders or other parties to acquire sufficient RINs. Such practices are possibilities in any year, and in any competitive marketplace, and we believe that obligated parties have had sufficient experience with the RFS program to have learned to take appropriate precautionary measures to avoid such results. Even where they have not done so, and find compliance with a given year's standards infeasible, they may avail themselves of the option of carrying a compliance deficit forward for that compliance year to the next. Some commenters asserted that BBD volume requirements for 2014 and 2015 should be set at the level proposed in November, 2013, rather than levels actually supplied in those years. Some commenters suggested that all 2014 volume requirements should be set equal to those proposed in 2013. As described in Section III, EPA disagrees with these commenters that obligated parties lacked notice that EPA could set final volume requirements for these
We recognize the important public policy goals at the heart of the RFS program, and we acknowledge that a number of challenges must be overcome in order to fully realize the potential for greater use of renewable fuels in the United States. We also recognize that the RFS program plays a central role in creating the incentives for realizing that potential. The standards being finalized today require that significant progress is made in overcoming those challenges. We expect future standards to both reflect and anticipate progress of the industry and market in providing for continued expansion in the supply of renewable fuels, and we intend to set standards in future years that continue to capitalize on the market's ability to respond to those standards with expansions in production and infrastructure.
We believe that the supply of renewable fuels can continue to increase in the coming years despite the constraints associated with shortfalls in cellulosic biofuel production and other advanced biofuels, and constraints associated with supplying renewable fuels to the vehicles and engines that can use them. As described in Section II.E, we believe that the market is capable of responding to ambitious standards by expanding all segments of the market needed to increase renewable fuel supply and modify fuel pricing to provide incentives for the production and use of renewable fuels.
In future years, we would expect to use the most up-to-date information available to project the growth that can realistically be achieved considering the ability of the RFS program to spur growth in the volume of ethanol, biodiesel, and other renewable fuels that can be supplied and consumed by vehicles as we have for the 2016 volumes in this rule. In particular we will focus on the emergence of advanced biofuels including cellulosic biofuel consistent with the statute. Many companies are continuing to invest in efforts ranging from research and development to the construction of commercial-scale facilities to increase the production potential of next generation biofuels. We will continue to evaluate new pathways especially for advanced biofuels and respond to petitions, expanding the availability of feedstocks, production technologies, and fuel types eligible under the RFS program.
We also intend to take additional steps to facilitate the development and use of advanced biofuels. In particular, we will be initiating action to allow the production of renewable fuels to occur in steps at more than one facility. Partial conversion of a renewable feedstock into a so-called “biointermediate” at remote facilities for subsequent final processing into renewable biofuel at the primary production facility has been identified by several industry members as an important option to reduce the cost and enhance the availability of cellulosic and other advanced biofuels. However, under the existing RFS regulations, renewable fuels must generally be produced from renewable feedstocks at a single facility in order to be eligible to generate RINs. We are currently working on a rulemaking that would propose amendments to the RFS program to allow for more favorable treatment of such biointermediates. We believe a rulemaking is necessary to provide clarity for stakeholders and for proper compliance and enforcement oversight.
We believe that the use of biointermediates to produce renewable fuels holds considerable promise for the future growth in production of the cellulosic and advanced biofuels required under the RFS program. While near-term production may be modest, significant potential for further growth in the long-term exists, as these technologies can lower the cost of utilizing cellulosic and other feedstocks for the production of renewable fuels by reducing the storage and transportation costs associated with cellulosic biomass and taking advantage of existing ethanol and petroleum refinery assets to convert the biomass to renewable fuel. This makes biointermediates a critical component of the growth of the RFS program in the future and in particular the growth of cellulosic biofuel volumes.
In addition to ongoing efforts to evaluate new pathways for advanced biofuel production, we are aware that other actions can also play a role in improving incentives provided by the RFS program to overcome challenges that limit the potential for increased volumes of renewable fuels. A number of commenters provided ideas in this regard, including suggestions that EPA take regulatory action to modify the administration of the cellulosic waiver credit (CWC) program to better provide stronger support for actual volume purchases, and to change the RFS program's point of obligation from its current focus on producers and importers of gasoline and diesel. Both of these issues are beyond the scope of this rulemaking. However, we will continue to actively monitor the functioning of the market, assess all relevant data, and review our options as necessary.
The national volume targets of advanced biofuel and total renewable fuel to be used under the RFS program each year through 2022 are specified in CAA section 211(o)(2). However, two statutory provisions authorize EPA to reduce these volumes under certain circumstances. EPA may reduce these volumes to the extent that we reduce the applicable volume for cellulosic biofuel pursuant to CAA section 211(o)(7)(D), or if the criteria are met for use of the general waiver authority under CAA section 211(o)(7)(A). We have evaluated the capabilities of the market and have concluded that the volumes for advanced biofuel and total renewable fuel specified in the statute cannot be achieved in 2014, 2015, or 2016. As a result we are exercising our discretion under these statutory provisions to reduce the applicable volumes of advanced biofuel and total renewable fuel to reflect the fact that this final rule cannot have an impact on renewable fuel use in the past, and to address constraints on the supply of renewable fuels in the future that are driven by both limitations in production or importation of these fuels and factors that limit supplying them to vehicles that can consume them.
While we are using our waiver authorities under the law to reduce applicable volumes from the statutory levels, we are setting the final volume requirements at levels that are intended to drive significant growth in renewable fuel use beyond what would occur in the absence of such requirements, as Congress intended. The final volume requirements recognize the ability of the market to respond to the standards we set while staying within the limits of feasibility. The net impact of these final volume requirements is that the necessary volumes of both advanced biofuel and conventional (non-advanced) renewable fuel would significantly increase over levels used in the past. The volumes that we are finalizing today are shown below.
Although there is scant legislative history for the Energy Independence and Security Act (EISA) to confirm the facts that were considered by Congress at the time of enactment, we believe that when Congress specified the renewable fuel volume targets that the RFS program was to attain, that it likely was with the understanding that the growth reflected in the statutory tables of applicable volumes would be well beyond any previously demonstrated ability of the industry to produce, distribute, and consume renewable fuels. For example, the annual average growth reflected in the statutory volumes for the time period between 2009 and 2022 is 1.6 billion gallons per year for advanced biofuel and 1.9 billion gallons per year for total renewable fuel. However, in the period 2001 to 2007 leading up to enactment of EISA, annual average supply growth rates were far lower: 0.8 billion gallons per year for ethanol (what has to date been the principal non-advanced renewable fuel under the RFS program), and 0.07 billion gallons per year for biodiesel (the principal advanced biofuel to date under the RFS program).
Moreover, it is highly unlikely that Congress expected the very high volumes that it specified in the statute to be reached only through the consumption of E10; indeed the statute does not explicitly require the use of ethanol at all. At the time EISA was passed in 2007, EIA's Annual Energy Outlook for 2007 (AEO 2007) projected that 17.3 billion gallons of ethanol was the maximum that could be consumed in 2022 if all gasoline contained E10 and there was no E0, E15, or E85.
Some commenters stated that EPA would be acting in a manner inconsistent with Congressional intent to increase renewable fuel use if we finalized volumes below the statutory volume targets. These commenters believed Congress set these targets at a level that would help incentivize investments such as building out new and existing capacity, installing storage/distribution infrastructure and advancing technology—all of which would help to increase volumes and achieve the targets within the specified timeframe in the statute. We agree that Congress set ambitious volume targets as a mechanism to push renewable fuel volume growth under the RFS program. However, Congress also provided EPA with waiver authority, in part to address the situation where supply of renewable fuel does not match these ambitious target levels. As a result we disagree with commenters who asserted that any EPA action to lower applicable volumes is not aligned with Congressional intent. The final volume requirements are set consistent with the Congressionally-established waiver authorities. The volumes required by this rule are ambitious and to attain them will require new investments and a responsive market.
Congress did not explicitly indicate, in EISA or in any other document associated with the legislation, the sort of changes that may have been expected to occur to reach 36 billion gallons by 2022. Today we know that possible approaches to significantly expand renewable fuel use fall into a number of areas, such as:
• Increased use of E15 in model year 2001 and later vehicles,
• Increased use of E85 or other higher level ethanol blends in flex-fuel vehicles (FFVs),
• Increased production and/or importation of non-ethanol biofuels (
• Increased use of biogas in CNG vehicles,
• Increased use of renewable jet fuel and heating oil,
• Increased use of cellulosic and other non-food based feedstocks, and
• Co-development of new technology vehicles and engines optimized for new fuels.
In the near term we expect that increases in E85 and biodiesel will dominate efforts to increase the use of renewable fuel, with smaller roles played by other renewable fuels (
We believe that over time use of both higher level ethanol blends and non-ethanol biofuels can and will increase, consistent with Congress' intent in enacting EPAct and EISA. As stated above, while Congress provided waiver authority to account for supply and other challenges, we do not believe that Congress intended that the E10 blendwall or any other particular limitation would present a barrier to the expansion of renewable fuels. The fact that Congress set volume targets reflecting increasing and substantial amounts of renewable fuel use clearly signals that it intended the RFS program to create incentives to increase renewable fuel supplies and overcome supply limitations. Notwithstanding these facts, Congress also authorized EPA to adjust statutory volumes as necessary to reflect situations where only partial progress had been made towards eliminating supply limitations, as well as to address situations involving unexpected severe economic or environmental harm resulting from program implementation.
Congress specified increasing annual volume targets in the statute for total renewable fuel, advanced biofuel, and cellulosic biofuel for every year through 2022, and for biomass-based diesel (BBD) through 2012, and authorized EPA to set volume requirements for subsequent years after consideration of several specified factors. However, Congress recognized that circumstances could arise that might require a reduction in the volume targets specified in the statute as evidenced by the waiver provisions in CAA section 211(o)(7). As described below, we believe that limitations in production and importation of cellulosic biofuels provide EPA with authority to waive volumes of cellulosic biofuel, total renewable fuel, and advanced biofuel volumes pursuant to section 211(o)(7)(D). In addition, limitations in the production and importation of qualifying renewable fuels, along with factors that limit supplying those fuels to the vehicles that can consume them constitute circumstances that warrant a waiver of the total renewable fuel requirement under section 211(o)(7)(A).
With regard to ethanol, a number of market factors combine to place significant restrictions on the continued growth in the volume of ethanol that can be supplied to vehicles at the present time. The maximum amount of ethanol that can be consumed if all gasoline was E10, the limited number and limited geographic distribution of retail stations that offer higher ethanol blends such as E15 and E85, and the limited number of FFVs that have access to E85. Additionally, available information indicates that biodiesel also faces marketplace constraints in the rate at which it can grow, not only in the past (
EPA is separately using two complementary legal authorities to set required volumes of advanced biofuel and total renewable fuel at levels below the volume targets provided in the statute: The cellulosic waiver authority under CAA section 211(o)(7)(D)(i), and the general waiver authority under CAA section 211(o)(7)(A). This section discusses both of these statutory authorities and briefly describes how we have used them to determine appropriate reductions in advanced biofuel and total renewable fuel in comparison to the statutory volumes.
Under CAA section 211(o)(7)(D)(i), if EPA determines that the projected volume of cellulosic biofuel production for the following year is less than the applicable volume provided in the statute, then EPA must reduce the applicable volume of cellulosic biofuel to the projected volume available during that calendar year. We refer to this provision as the agency's “cellulosic wavier authority” under the statute.
Section 211(o)(7)(D)(i) also provides that “[f]or any calendar year in which the Administrator makes such a reduction, the Administrator may also reduce the applicable volume of renewable fuel and advanced biofuels requirement established under paragraph (2)(B) by the same or a lesser volume.” Using this authority, the reductions in total renewable fuel and advanced biofuel can be less than or equal to, but no more than, the amount of reduction in the cellulosic biofuel volume. In prior actions EPA has interpreted this provision as authorizing EPA to reduce both total renewable fuel and advanced biofuel, by the same amount, if EPA reduces the volume of cellulosic biofuel.
The cellulosic waiver provision was discussed by the United States Court of Appeals for the District of Columbia Circuit, in the context of its review of EPA's 2013 annual RFS rule. As the Court explained,
[T]he Clean Air Act provides that if EPA reduces the cellulosic biofuel requirement, as it did here, then it “may also reduce” the advanced biofuel and total renewable fuel quotas “by the same or a lesser volume.” 42 U.S.C. 7545(o)(7)(D)(i). There is no requirement to reduce these latter quotas, nor
Some stakeholders commented that EPA may only exercise the cellulosic waiver authority to reduce total and advanced volumes in circumstances described in section 211(o)(7)(A) (that is, where there is inadequate domestic supply or severe harm to the environment or economy), or that it must in considering use of the cellulosic waiver authority consider the factors specified in section 211(o)(2)(B)(ii) that are required considerations when EPA sets applicable volumes for years in which the statute does not do so. Contrary to these comments, the D.C. Circuit found in
In general, we do not believe that it would be consistent with the energy security and greenhouse gas reduction goals of the statute to reduce the applicable volumes of renewable fuel set forth in the statute absent a substantial justification for doing so. When using the cellulosic waiver authority, we believe that there would be a substantial justification to exercise our discretion to lower volumes of total and advanced renewable fuels in circumstances where there is inadequate projected production or import of potentially qualifying renewable fuels, or where constraints exist that limit the ability of those biofuels to be used for purposes specified in the Act (
We are also using this authority to reduce total renewable volumes by the same amount. In past actions we have interpreted the cellulosic waiver authority as requiring equal reductions in advanced and total renewable fuel, based on concerns that EPA waiver decisions should not allow non-advanced biofuels to backfill volumes intended by Congress to be satisfied by advanced biofuels. In addition to this consideration, the equal reduction in total renewable fuel is justifiable under the cellulosic waiver authority based on an assessment of volumes that can be produced and imported, and consideration of the extent to which those volumes can be distributed and used as specified in the Act. However, this level of reduction is insufficient to address all of the supply limitations associated with total renewable fuel. Therefore, we are also using the general waiver authority as justification for further reductions in total renewable fuel volumes, as discussed in the next section.
Some commenters argued that to the extent volume reductions are needed at all, EPA could rely solely on the cellulosic waiver authority to provide such reductions.
CAA section 211(o)(7)(A) provides that EPA, in consultation with the Secretary of Agriculture (USDA) and the
• Implementation of the requirement would severely harm the economy or the environment of a State, a region, or the United States; or
• There is an inadequate domestic supply.
Because the general waiver provision provides EPA the discretion to waive the volume requirements of the Act “in whole or in part,” we interpret this section as granting EPA authority to waive any or all of the four applicable volume requirements in appropriate circumstances. Thus, for example, unlike the cellulosic waiver authority, a reduction in total renewable fuel pursuant to the general waiver authority is not limited to the reduction in cellulosic biofuel.
EPA has had only limited opportunity to date to interpret and apply the waiver provision in CAA section 211(o)(7)(A)(ii) related to “inadequate domestic supply,”has never before done so in the context of deriving an appropriate annual RFS standard.
The waiver provision at CAA section 211(o)(7)(A)(ii) is ambiguous in several respects. First, it does not specify what the general term “supply” refers to. The common understanding of this term is an amount of a resource or product that is available for use by the person or place at issue.
We believe that our interpretation is consistent with the language of section 211(o), and Congressional intent in enacting the program. It is evident from section 211(o) that Congress's intent was not simply to increase production of biofuel, but rather to provide that certain volumes of biofuel be used by the ultimate consumer as a replacement for the use of fossil-based fuel in the United States. The very definition of “renewable fuel” requires that the fuel be “used to replace or reduce the quantity of fossil fuel present in a transportation fuel.” CAA section 211(o)(1)(J). In addition the definition of “additional renewable fuel” specifies that it is fuel that is “used to replace or reduce the quantity of fossil fuel present in home heating oil or jet fuel.” CAA section 211(o)(1)(A.). Thus, there is no “renewable fuel” and the RFS program does not achieve the desired benefits of the program unless biofuels like ethanol and biodiesel are actually used to replace fossil-based transportation fuels, heating oil or jet fuel in the United States.
In determining whether “supply” is adequate, we believe that we should consider only those volumes of biofuel that are expected to satisfy all of the relevant statutory definitions and requirements. There are two principal components to the definition of renewable fuel and additional renewable fuel: That it be made from renewable biomass and that it be used in transportation fuel. CAA section 211(o)(1)(J); CAA section 211(o)(1)(A). Ignoring the extent to which a fuel can actually be used in transportation fuel (or in heating oil or jet fuel) in the inadequate domestic supply inquiry would involve ignoring a critical element of the definition, and begs the question of whether in assessing “supply” EPA should also ignore the renewable biomass component of the definition of renewable fuel or other requirements specified in the Act such as the requirement that transportation fuel containing renewable fuel be used in the United States and that sub-categories of renewable fuel achieve specified levels of GHG reduction. We believe that ignoring any component of the definition of renewable fuel or the other provisions of the Act that affect the types of renewable fuels that qualify under the Act would be inconsistent with the objective of the waiver provision, which is to determine if sufficient qualifying fuels are present. For example, if there was abundant production of biofuel that was not made from renewable biomass (and therefore did
The waiver provision also does not specify what factors are relevant in determining the adequacy of the supply. Adequacy of the supply would logically be understood in terms of the parties who use the supply of renewable qualifying fuels. Adequacy of supply could affect various parties, including obligated parties, blenders, and consumers. Adequacy of the renewable fuel supply with respect to the consumer might well involve consideration of factors different from those involved when considering adequacy of the upstream supply of biofuels to the obligated parties. We believe that interpreting this waiver provision as authorizing EPA to consider the adequacy of supply of renewable fuel to the ultimate consumer appropriately allows consideration of upstream supply constraints to all of the relevant parties, including the adequacy of supply of biofuels to obligated parties and blenders, as well as the ability to deliver qualifying renewable fuels to the consumer. This is particularly appropriate in the context of a fuel program that is aimed at increasing the use of renewable fuel by consumers in transportation fuel, heating oil or jet fuel. In our view, this is the most reasonable and appropriate construction of this ambiguous language in light of the overall policy goals of the RFS program.
EPA has reviewed other fuel related provisions of the Clean Air Act with somewhat similar waiver authorities, and they highlight both the ambiguity of the RFS general waiver authority and the reasonableness of applying it broadly to include adequacy of supply to the ultimate consumer of qualifying fuels. For example, CAA section 211(k)(6) provides EPA with authority for EPA to defer the application of reformulated gasoline (RFG) in states seeking to opt-in to the program. There are two categories of states that may opt-in: Those with nonattainment classifications indicating a more serious and/or longstanding air quality problem (leading to classification as a Marginal, Moderate, Serious or Severe nonattainment area) and those that do not have such serious concerns, but which are nevertheless within the “ozone transport region” established by CAA section 184(a). For the states with more serious problems that seek to opt-in to the RFS program, section 211(k)(6)(A)(ii) allows EPA to defer application of RFG requirements if EPA determines that “there is insufficient domestic
CAA section 211(c)(4)(C)(ii) provides EPA with waiver authority to address “extreme and unusual fuel or fuel additive supply circumstances . . . which prevent the distribution of an adequate supply of the fuel or fuel additive to consumers.” The supply circumstances must be the result of a natural disaster, an Act of God, a pipeline or refinery equipment failure or another event that could not reasonably have been foreseen, and granting the waiver must be “in the public interest.” In this case, Congress clearly specified that the adequacy of the supply is judged in terms of the availability of the fuel or fuel additive to the ultimate consumer, and includes consideration of the ability to distribute the required fuel or fuel additive to the ultimate consumer. The RFS waiver provision does not contain any such explicit clarification from Congress, thus its broad and ambiguous wording provides EPA the discretion to reasonably interpret the scope of the RFS waiver provision as relating to supply of renewable fuel to the ultimate consumer.
CAA section 211(m)(3)(C) allows EPA to delay the effective date of oxygenated gasoline requirements for certain carbon monoxide nonattainment areas if EPA finds “an inadequate domestic supply of, or distribution capacity for, oxygenated gasoline . . . or fuel additives” needed to make oxygenated gasoline. Here, Congress chose to expressly differentiate between “domestic supply” and “distribution capacity,” indicating that each of these elements was to be considered separately. This would indicate that the term inadequate supply, although ambiguous for the reasons discussed above, could in appropriate circumstances be read as more limited in scope. In contrast to the RFS waiver provision, the section 211(m) waiver provision includes additional text that makes clear that EPA's authority includes consideration of distribution capacity—reducing the ambiguity inherent in using just the general phrase “inadequate domestic supply.” Presumably this avoids a situation where ambiguity would result in an overly narrow administrative interpretation. The oxygenated gasoline waiver provision is also instructive in that it clarifies that it applies separately to both finished oxygenated fuel and to oxygenated fuel blending components. That is, there could be an adequate supply of the oxygenate, such as ethanol, but not an adequate supply of the blended fuel which is sold to the consumer. The RFS waiver provision employs the phrase “inadequate domestic supply” without further specification or clarification, thus providing EPA the discretion to determine whether the adequacy of the supply of renewable fuel can reasonably be judged in terms of availability for use by the ultimate consumer, including consideration of the capacity to distribute the product to the ultimate consumer. In contrast to the section 211(m) waiver provision, Congress arguably did not mandate that the RFS waiver provision be interpreted as providing authority to address problems affecting the supply of renewable fuel to the ultimate consumer. However, given the ambiguity of the RFS provision, we believe that it does provide EPA the discretion to adopt such an interpretation, resulting in a policy approach consistent with that required by the less ambiguous section 211(m) waiver provision.
As the above review of various waiver provisions in Title II of the Clean Air Act makes clear, Congress has used the terms “supply” and “inadequate supply” in different waiver provisions. In the RFS general waiver provision, Congress spoke in general terms and did not address the scope of activities or persons or places that are the focus in determining the adequacy of supply. In other cases, Congress provided, to varying degrees, more explicit direction. Overall, the various waiver provisions lend support to the view that it is permissible, where Congress has used just the ambiguous phrase “inadequate domestic supply” in the general waiver provision, to consider supply in terms of distribution of renewable transportation fuel, heating oil and jet fuel in the United States and use by the ultimate consumer, and that the term “inadequate supply” of a fuel need not be read as referring to just the capacity to produce biofuels or the capacity to supply biofuels to obligated parties and blenders.
We are aware, as a number of commenters pointed out, that prior to final adoption of the Energy Independence and Security Act of 2007, Congress had before it bills that would have provided for a waiver in situations where there was “inadequate domestic supply or distribution capacity to meet the requirement.”
We believe that it is permissible under the statute to interpret the term “inadequate domestic supply” to authorize EPA to consider the full range of constraints, including legal, fuel infrastructure and other constraints, that could result in an inadequate supply of qualifying renewable fuels to consumers in the United States in the form of transportation fuel, heating oil or jet fuel. Under this interpretation, we do not limit ourselves to consideration of the capacity to produce or import biofuels but also consider practical and legal constraints affecting the volume of qualifying renewable fuel supplied to the ultimate consumer in the United States.
As described in more detail in Section II.E. below, although at least for 2014 and possibly 2015 and 2016, there is sufficient capacity to produce and import biofuels such as ethanol to meet the statutory applicable volume of total renewable fuel, there are practical and legal constraints on the ability of sufficient volumes to be delivered to and used in transportation fuel by vehicles in the United States, or in jet fuel or heating oil. 10% ethanol blends (E10) can legally be used in all gasoline vehicles, but only some subsets of vehicles and nonroad equipment can legally use up to either 15% ethanol (for 2001 and newer light-duty vehicles, which represent about 85% of the in-use fleet) or up to 85% ethanol (for flex fuel vehicles, which represent about 6% of all light-duty cars and trucks).
A number of stakeholders disagreed that a review of other CAA waiver authorities supports the conclusion that the term “inadequate domestic supply” is ambiguous, and that it can be interpreted to include consideration of infrastructure and other constraints related to the delivery to and use of renewable fuel by vehicles. They argued that inadequate domestic supply unambiguously refers to the production capacity of biofuels that could become renewable fuel if put to qualifying uses. Commenters also focused on section 211(m)(3)(C)(i), which provides for a waiver of the requirement to use oxygenated gasoline in certain carbon monoxide nonattainment areas where there is “an inadequate domestic supply of, or distribution capacity for, oxygenated gasoline.” They argued that this provision demonstrates that infrastructure considerations are distinct from supply, and that Congress would have used similar language in section 211(o)(7)(A) if it intended EPA to consider infrastructure and other constraints as a basis for an RFS waiver. These stakeholders asserted that there can be no inadequate domestic supply if there is sufficient biofuels produced and available for purchase by obligated parties and, consequently, that any difficulty that obligated parties may experience in delivering renewable fuels to consumers is irrelevant under CAA section 211(o)(7)(A). However, these stakeholders' analysis is clearly not persuasive when sections 211(m)(3)(C)(i) and 211(o)(7)(A) are considered together with all of the CAA provisions containing similar waiver provisions. For example, as discussed above, in section 211(k)(6) Congress used the term “capacity to produce” in one RFG waiver context for opt-in states and “capacity to supply” in another context. This suggests that the term “supply” does not unambiguously mean the same thing as “produce,” as these commenters argue. The term “supply” can mean something different, and logically does in the context of section 211(k)(6) where the two waiver provisions at issue use these different terms and apply in different contexts, to states with considerably different levels of air quality concern. The different ways that the term “supply” is used in the various CAA provisions indicates that in section 211(o)(7)(A) the word “supply” is ambiguous and may reasonably be interpreted consistent with the Act's objectives.
Some stakeholders have asserted that interpreting the general waiver authority to allow consideration of all constraints on the use of ethanol by the ultimate consumer would amount to focusing on “demand” rather than “supply” and would, therefore, be impermissible under the Act. EPA does not agree that a broad consideration of such factors as physical limitations in infrastructure (
Some stakeholders have stated that even if the term “inadequate domestic supply,” were ambiguous, EPA's final interpretation is not reasonable because it would either reward obligated parties for their intransigence in planning to
EPA is taking somewhat different approaches for its assessment of renewable fuel supply for past time periods covered by this rule as compared to future time periods. For 2014 and most of 2015, our assessment of the “supply” available for RFS compliance must necessarily focus on the number of RINs actually generated that are available for compliance with the applicable standards because this final rule cannot influence the volumes of renewable fuel produced and consumed in the past. To set the volume requirements at a higher level would require either noncompliance, which EPA deems an unreasonable approach, or the drawdown of the bank of carryover RINs. Although the availability of carryover RINs is a relevant consideration in determining the extent to which a waiver is justified,
For 2014, we have set the volume requirements for renewable fuel as equal to the number of RINs generated that are available for compliance. With respect to 2015, because this final rule is being signed at the end of November, it cannot influence renewable fuel use during prior months, and, given lead-time considerations cannot reasonably be expected to influence renewable fuel use in the remaining month of the year. Accordingly, we have assessed the supply of total renewable fuel in 2015 by determining the number of RINs generated and available for compliance in the part of 2015 for which data are available and projecting that renewable fuel will be used at the same rate for the remainder of the year.
In the context of a forward-looking annual RFS standards rulemaking issued consistent with the statutory schedule, such as for 2016 in this rule, we believe that the evaluation of “supply” for purposes of determining the appropriate volume reduction of total renewable fuel under section 211(o)(7)(A) should compare the statutory targets, and the ability of the market to both produce and consume renewable fuels, in the context of a market that is responsive to the standards that we set. In the context of this assessment, while we have examined the circumstances and issues related to individual sources of renewable fuel, our determination of the final volume requirements is based on an assessment of overall volumes that can be achieved given the interactions that occur between individual sources under the influence of the standards we set.
EPA is reducing the applicable volumes of total renewable fuel for 2014, 2015 and 2016 using two separate authorities. We are making initial reductions in total renewable fuel for these years that are equal to the volume reductions in advanced biofuel, using the cellulosic waiver authority.
In order to use the general waiver authority in CAA section 211(o)(7)(A) to reduce the applicable volumes of total renewable fuel, we must make a determination that there is either “inadequate domestic supply” or that implementation of the statutory volumes would severely harm the economy or environment of a State, a region or the United States. This section summarizes our determination that there is an inadequate domestic supply of total renewable fuel in the time period 2014-2016, and thus that the statutory volume targets are not achievable with volumes supplied in these three years. Additionally, this determination that the statutory volume targets are not achievable with volumes supplied also supports our use of the cellulosic waiver authority under CAA section 211(o)(7)(D) to reduce the applicable volumes of advanced and total renewable fuel.
As described in Section II.C below, actual supply of renewable fuel in 2014, determined by an assessment of RINs generated minus RINs retired for non-compliance reasons such as exports of renewable fuel or spills, was below the applicable volume targets in the statute. For total renewable fuel, actual supply was 1.87 billion gallons below the statutory volume target of 18.15 billion gallons, while for advanced biofuel, actual supply was 1.08 billion gallons below the statutory volume target of 3.75 billion gallons. As we noted in the NPRM, the requirements we establish at this time for 2014 cannot change what occurred in the past, and as a result our assessment of the “supply” available for RFS compliance during 2014 must necessarily focus on actual renewable fuel use. While many stakeholders agreed with this position, some did not. Those that disagreed generally pointed to the bank of carryover RINs as additional “supply” that could be used to increase the 2014 standards above actual wet gallon supply in 2014, or to the fact that renewable fuel volumes that were exported in 2014 would have been available for compliance purposes if EPA had set the 2014 standards by the statutory deadline of November 30, 2013. As described in Section II.H, we do not believe it would be appropriate to intentionally reduce the current bank of carryover RINs to increase the applicable 2014 volume requirements above the supply of wet gallons to consumers in 2014. Regarding exports of renewable fuels, many of those volumes were produced specifically for the purpose of export rather than being produced for general domestic distribution. Stakeholders who suggested that they would have been used for compliance purposes provided no evidence that they would have been available for compliance given export agreements and/or contracts. Furthermore, as discussed in Section II.E.1, legal and practical constraints on the domestic use of renewable fuel are operating in the 2014-2016 time period to limit renewable fuels that have been produced from actually being supplied to consumers. Finally, regardless of any possibility that they could have been used if EPA had acted by the statutory deadline to establish RFS requirements for 2014, it is undisputed that RINs representing fuel exported in 2014 are not currently available for compliance, and it is the current circumstances that are relevant in determining what the applicable volume requirements for 2014 should be. Thus, we do not believe that these arguments warrant an increase in the applicable 2014 volume requirements above the volume of wet gallons actually supplied to consumers in 2014. In sum, we have determined that there was a 1.87 billion gallon shortfall in the supply of total renewable fuel in 2014, and that a waiver of the 2014 statutory target for total renewable fuel is therefore warranted pursuant to section 211(o)(7)(A) on the basis of inadequate domestic supply. In addition, we believe the same set of facts support a waiver of the total renewable fuel applicable volume using the cellulosic waiver authority in section 211(o)(7)(D), and we are also asserting that waiver authority in support of 1.08 billion gallons of this volume reduction (which is equal to the reduction in the advanced biofuel volume using the cellulosic waiver authority, as described below).
Because this final rulemaking is being released after almost all of 2015 has passed, the factual situation for 2015 is essentially the same as it is for 2014: the requirements we establish at this time for 2015 cannot change what occurred in the past, and in addition it is being issued too late to influence the fuels market in the remaining month of the year. Therefore, our assessment of the “supply” available for RFS compliance during 2015 is based on actual renewable fuel use for the months for which data are available, together with a projection for the remainder of the year. In sum, we have concluded that the statutory volumes for 2015 cannot be met with available supply, and that a waiver is justified.
The statute sets a target of 22.25 billion gallons of total renewable fuel in 2016. We have determined that this volume cannot be achieved under even the most optimistic assumptions given current and near-future circumstances. To make this determination, we first assumed that every gallon of gasoline would contain 10% ethanol, and also assumed production and use of BBD
Based on the current and near-future capabilities of the industry, we expect that only a relatively small portion of the additional volumes needed would come from non-ethanol cellulosic biofuel, non-ethanol advanced biofuels other than BBD, and non-ethanol conventional renewable fuels; non-ethanol supply other than BBD was 237 million gallons in 2013, 165 million gallons in 2014, and 323 million gallons in 2015. In total these sources could account for several hundred million gallons, as demonstrated by supply of these sources in previous years.
If all of the additional volumes needed were biodiesel, the industry would need to supply a total of about 5.5 billion physical gallons in 2016. As described more fully in Section II.D, actual supply of biodiesel through the end of 2015 is expected to be about 1.73 billion gallons. While this final rule will be released before 2016, we nevertheless do not believe that the market could supply 5.5 billion gallons of biodiesel in 2016; as described more fully in Section II.E.3 below, the constraints on biodiesel supply are such that 5.5 billion gallons is beyond reach. For instance, there currently exist only about 2.7 billion gallons of registered biodiesel production capacity in the U.S. In addition to expanding the registered production capacity, the industry would need to restart all idled facilities, secure sufficient feedstocks including diverting them from current uses, implement significantly expanded distribution, blending, and retail sales infrastructure, and establish new contracts for distribution and sales.
Just as importantly, biodiesel volumes on the order of 5.5 billion physical gallons in 2016 are far in excess of what could actually be consumed in this short timeframe. This volume of BBD would constitute about 10% of the diesel pool in 2016.
Alternatively, if all of the additional volumes shown in Table II.B.5-1 were ethanol, the U.S. would need to consume volumes of E85 far higher, in our estimation, than the market is capable of supplying: In 2016 it would need to be about 8.7 billion gallons.
The additional volume of 5.76 billion gallons in 2016 could also be satisfied through production and use of a combination of BBD and E85. However, even in this case the volumes are untenable. For instance, one possible combination for 2016 would be 4.4 billion gallons of E85 and 3.6 billion gallons of biodiesel. While both of these volumes are considerably less than the maximums that would be required if the market supplied only one or the other, both levels are beyond the reach of the market under current circumstances.
In response to the NPRM, some parties said that EPA had not sufficiently described why the statutory target for advanced biofuel cannot be reached in 2016. In the NPRM we did point out that more than 70% of the additional ethanol-equivalent volumes that would be needed to reach the statutory targets would need to be advanced biofuel, and discussed the impracticability of attaining those volumes. After a consideration of comments received, we have determined that for our final volume requirements for 2016, about 80% of the 5.76 billion gallons of additional volumes would need to be advanced biofuel in order to reach the statutory target of 7.25 billion gallons of advanced biofuel.
The RINs available for meeting the advanced biofuel standard include all cellulosic biofuel RINs, all biomass-based diesel RINs, and all advanced biofuel RINs. Cellulosic biofuel that is expected to be available, including all
The statutory target for advanced biofuel in 2016 is 7.25 billion gallons. After accounting for cellulosic biofuel, the BBD volume requirement, and potential other domestically-produced advanced biofuels, the total volume of advanced biofuel that would be needed to meet the statutory target of 7.25 billion gallons is 4.07 billion gallons.
We do not believe that 4.07 billion gallons of additional advanced biofuel can be supplied in 2016, even if the burden of meeting this requirement were shared between biomass-based diesel and imports of sugarcane ethanol. For instance, if sugarcane ethanol imports reached 1.5 billion gallons in 2016, the total volume of BBD would need to be 3.6 billion gallons.
In response to the NPRM, a number of stakeholders placed the blame for the market's inability to meet the statutory targets on both the EPA for not meeting the statutory deadlines for setting standards and obligated parties for not investing sufficiently in the required infrastructure. While we agree that the delay in setting standards has created some uncertainty and could have led to a slowdown in investment in both production capacity and infrastructure for blending and dispensing renewable transportation fuels, we do not believe that the statutory targets could have been met in 2014, 2015, and 2016 if only EPA had established the applicable standards on the statutory schedule. Stakeholders who took the position that the statutory targets were achievable in 2014 and 2015 generally based that position on the potential for a substantial draw-down in the bank of carryover RINs. As described in the NPRM and in Section II.H, we believe that it would be inappropriate to intentionally drawn down the current bank of carryover RINs in order to raise the applicable volume requirements above the levels that could be met with RINs generated for actual renewable fuel supplied in 2014, 2015, and 2016. Many of these same stakeholders also argued that the statutory targets could be met if the EPA merely set the standards at the statutory levels. They argued, in essence, that the market's ability to respond to the standards EPA sets is effectively unlimited and that the market will rise to meet the expectations placed upon it. As described in Section II.E.1, we believe that the market is in fact limited in its ability to respond to the standards that EPA sets for 2016. Setting the volume requirements at the statutory targets would not compel the market to respond with sufficient changes in production levels, infrastructure, and fuel pricing at retail to result in the statutory volumes actually being consumed in 2016, but would instead lead to noncompliance and/or additional petitions for a waiver of the standards.
Many stakeholders also decried obligated parties' failure to invest in the infrastructure needed to permit expanded use of higher ethanol blends such as E15 and E85. They argued that EPA should not reward obligated parties for their recalcitrance by reducing the applicable volume requirements below the statutory targets. In taking these positions, stakeholders cited both the statutory requirement that obligations be placed on “refineries, blenders, and importers, as appropriate” and EPA's regulations which (with limited exceptions) further narrow the applicability of the obligations to producers and importers of gasoline and diesel. Suggestions in the NPRM that renewable fuel producers could contribute to efforts to expand infrastructure were generally met by these commenters with references to the statutory language and their belief that all responsibility for investing in expanded infrastructure rests on obligated parties.
We agree that the statutory language, in combination with the regulatory structure, generally places the
Nevertheless, there are actions that obligated parties can take that are more directly related to their roles as importers and refiners, such as investing in or otherwise influencing business practices in such a way as to promote increases in renewable fuel use. We noted several ways in which this could happen in the NPRM.
In the NPRM we proposed that for each of years 2014, 2015, and 2016 we would reduce both the advanced biofuel and total renewable fuel volumes by the same amount using the cellulosic waiver authority, and then further reduce the total renewable fuel volumes using just the general waiver authority. However, we requested comment on whether it would be appropriate in the final rule to use the cellulosic waiver authority alone. In response to the NPRM, a number of parties agreed that some reductions from the statutory targets are warranted, but, they suggested that reductions under the cellulosic waiver authority would be sufficient, and that the market would be capable of meeting the applicable volume requirements using this approach with the use of carryover RINs to meet any shortfalls in actual renewable fuel supply. Stakeholders who suggested this approach included Growth Energy and the Renewable Fuels Association, among others.
We continue to believe that the applicable standards should be based on available information on actual renewable fuel supplied in 2014 and 2015, as described more fully in Sections II.C and II.D below. Today's rule cannot influence renewable fuel use in either year. Furthermore, we do not believe it would be appropriate to intentionally draw down the bank of carryover RINs as a means for increasing the applicable volume requirements for 2014, 2015, and 2016 beyond the actual renewable fuel supply, since we believe that the current bank of carryover RINs provides important program benefits, as discussed in Section II.H. Even if we were to use the availability of carryover RINs as a basis for setting the standards for 2014 and 2015 at the statutory targets instead of setting them at actual renewable fuel supply, then, assuming we entered the 2014 compliance year with 1.74 billion carryover RINs, the amount of carryover RINs available for 2016 would only be on the order of 0.1 billion RINs. This would be insufficient to maintain the statutory volumes for 2016 contrary to the commenter's claims. Since the appropriate volume reductions in total renewable fuel (to levels representing actual renewable fuel supply) can only be achieved through the use of the general waiver authority, we continue to believe that it would be inappropriate to use only the cellulosic waiver authority.
With regard to 2016 specifically, stakeholders that supported the use of the cellulosic waiver authority alone differed in whether the advanced biofuel and total renewable fuel requirements ought to be reduced by the full amount permitted under the cellulosic waiver authority, or instead only the amount needed to bring the advanced biofuel volume requirement to a level consistent with projected supply. Those supporting the former view pointed out that advanced biofuels in excess of the advanced biofuel standard can be used to meet the non-advanced portion of the total renewable fuel standards. While we agree that this is the case, explicitly and intentionally establishing a volume requirement for advanced biofuel that is below the level that we believe is reasonably attainable would be inconsistent with the goals of the RFS program. Since advanced biofuels have significantly superior GHG reduction performance, we believe we should structure our decision so as to promote the production and use of advanced biofuel volumes that can be reasonably supplied. Therefore, our assessment of the use of the cellulosic waiver authority alone focused on a case in which advanced biofuel and total renewable fuel are both reduced only to the degree necessary to yield an appropriate volume of advanced biofuel (
Using the advanced biofuel volume requirement of 3.61 billion gallons that we have determined to be reasonably attainable in 2016, and which we are finalizing today, represents a volume
Under a hypothetical scenario wherein reductions were made only under the cellulosic waiver authority, the required volumes of non-ethanol renewable fuel would be in excess of the levels we believe can be achieved in 2016. Even in the unlikely event that E85 volumes reached 400 million gallons,
When added to the 2.5 billion gallons of biodiesel and renewable diesel (3.75 billion RINs) that, as discussed in Section II.E.3, is the maximum we believe can reasonably be achieved in 2016, the total volume of 2.75 billion gallons of biodiesel and renewable diesel is beyond the reach of a responsive market. Attaining a total of 2.75 billion gallons of biodiesel and renewable diesel in 2016 would require that all of the idled registered biodiesel capacity in the U.S. be brought into production at the beginning of 2016, with the attendant hiring of workers, arranging for feedstock purchases including diverting many feedstocks from existing uses, and arranging routes for distribution, blending, and sale of the finished product. In combination with other challenges as described in Section II.E.3, it is highly unlikely that 2.75 billion gallons of biodiesel supply could be achieved in 2016. Especially when combined with the fact that 400 million gallons of E85 is highly unlikely, we do not believe that this scenario is tenable.
A number of stakeholders said that using the cellulosic waiver authority alone would ensure that 15 billion gallons of corn-ethanol would be used in the U.S. in 2016. Although the implied requirement for conventional renewable fuel would be 15 billion gallons under this scenario, domestic use of corn-ethanol would be essentially no different than it would be under the volume requirements we are finalizing today using both the cellulosic waiver authority and the general waiver authority. This is due to the fact that the legal and practical constraints on the supply of ethanol to consumers are not likely to be relieved to a greater extent with higher standards than they are with the standards we are adopting today, as described more fully in Section II.E.2 below. While the supply of renewable fuel, including ethanol, can increase over time under the influence of the standards we set, the volume requirements for 2016 would not be achievable if only the cellulosic waiver authority were used. Thus we believe that using the cellulosic waiver authority alone would provide no practical advantage to the corn-ethanol industry, but instead would simply lead to a draw-down in the bank of carryover RINs and/or noncompliance.
In the NPRM, we proposed to base the applicable volume requirements for 2014 on the number of RINs supplied in 2014 that are expected to be available for use in complying with the standards. We based this approach on the notion that the standards we set cannot affect actual supply of renewable fuel in 2014, and that consequently the only result of setting a higher standard would be to require a draw-down in the bank of carryover RINs, which we explained would not be in the best interests of the program.
While many stakeholders agreed with our proposed approach, some did not. The primary objection was that carryover RINs should be counted as part of the “supply” available for compliance with the 2014 standards and, therefore, that the 2014 statutory volume targets cannot or should not be waived so long as the existing supply of RINs in 2014 that are available for compliance plus carryover RINs is sufficient to attain the statutory targets. As described in Section II.H below, we continue to believe that it would be imprudent and contrary to the long term objectives of the program to intentionally set renewable fuel volume requirements at a level higher than the estimated supply of renewable fuel based on an intentional draw down of the current bank of carryover RINs to achieve compliance. The statute does not define the term “supply,” and it is logical to interpret the term to mean the supply of actual renewable fuel to the vehicles that can use it. However, in assessing whether this supply is “inadequate,” and whether EPA should use its discretion to waive the statutory targets, it is appropriate to consider the extent to which the available bank of
A secondary objection to setting the 2014 volume requirements at the level of actual supply focused on our proposed calculation of the number of RINs generated in 2014 that would actually be available for compliance with the standards. Specifically, some parties argued that all RINs generated in 2014 should be counted as being available for compliance regardless of whether some were retired for purposes other than compliance with the annual percentage standards by obligated parties. In addition to exports, such “non-compliance” RIN retirements could occur for a variety of reasons, such as:
Some stakeholders who argued for the consideration of carryover RINs in setting the 2014 standards did so recognizing that 2014 supply of renewable fuel would be unaffected, but said that doing so might actually increase supply in 2015 or 2016 above levels that would occur otherwise. More specifically, these stakeholders expressed concern that obligated parties would respond to increasing volume requirements in 2015 and 2016 by using carryover RINs rather than entering into contracts or other arrangements to increase the actual supply of renewable fuel. Given the value of carryover RINs to obligated parties as a compliance flexibility tool that is available to address unforeseen RIN shortfalls such as those that may be caused by natural disasters and other supply problems, and considering that obligated parties are likely to consider that increasing RFS requirements in the future could make compliance more difficult in coming years, we do not believe it is likely that obligated parties would intentionally draw down their carryover RIN banks as an alternative to purchasing RINs generated from increasing supplies of renewable fuel. As described further below, we are setting the applicable volume requirements for 2014, 2015, and 2016 at levels that we believe can be supplied by actual gallons of renewable fuel used in those years, without the need for carryover RINs.
In the NPRM, we explained that the total number of RINs that will be retired to cover exports of renewable fuel in 2014 will only be recorded in EMTS after the compliance demonstration deadline for 2014 has passed. As described in Section VI.B, we are amending the current rules in this action to specify March 1, 2016 as the deadline for renewable fuel exporters to demonstrate compliance with those 2014 RVOs not already satisfied. Since we recognized in the NPRM that the compliance deadline for all 2014 RIN exports would not have passed by the time we issued the final 2014 standards, we proposed to estimate likely RIN retirements for renewable fuel exports by using renewable fuel export information from EIA. Ethanol export data reported by EIA is derived from surveys collected by the Census Bureau. These surveys distinguish between ethanol that is denatured and ethanol that is undenatured, with approximately 460 million gallons being described as denatured and approximately 350 million gallons being described as undenatured for 2014. In the NPRM we assumed that all 810 million gallons of ethanol exported in 2014 had been denatured in the United States. We based this approach on the expectation that ethanol producers had an incentive to denature all ethanol for tax purposes, and thus would only sell undenatured ethanol if it was contractually designated for export. Because denatured ethanol meets the regulatory definition of renewable fuel, we assumed that RINs had been generated for this entire volume, and that an equal number of RINs would need to be retired by the exporters of this renewable fuel. RINs retired for exported renewable fuel are not available for use by obligated parties in complying with their 2014 obligations. Thus we calculated the supply of renewable fuel for 2014 by subtracting the exported volumes represented by both categories of ethanol from the amount of RINs generated for domestic production or imports of renewable fuel in 2014.
In response to the NPRM, some stakeholders indicated that they believed we had erred in assuming that all exported ethanol was denatured in the U.S., and had RINs generated for it prior to export. Based on these comments and further investigation into
Several stakeholders raised a similar issue with respect to biodiesel exports, contending that producers never generated RINs for some biodiesel that was exported, and thus all biodiesel exports should not have been subtracted from the number of biodiesel RINs generated in 2014 in assessing the 2014 domestic supply of biodiesel. These parties based their argument on comparisons between EIA export data and biodiesel RINs separated from biodiesel intended for export as recorded in EMTS for previous years. As pointed out by these stakeholders, a comparison of data from EMTS and EIA for 2011 through 2013 does appear to suggest incongruous measurements of biodiesel exports.
Finally, some parties argued that their operations for 2014 vis-a-vis acquisition of RINs were based on the standards that were proposed in the November 29, 2013 NPRM, and that it would be inappropriate for EPA to set applicable percentage standards for advanced biofuel and total renewable fuel for 2014 that are more stringent than those proposed in November 2013. We disagree. First, the statutory table of applicable volumes has long provided notice to obligated parties that EPA could establish requirements at least that high, and many commenters on the November 2013 NPRM urged EPA to set standards that would require use of those volumes. In addition, it is well understood that requirements in a final rule can differ significantly from those that are proposed. Also, the November 2013 NPRM explicitly provided both a range of possible volume requirements for advanced biofuel and total renewable fuel as well as an indication that the final volume requirements could include a modification of those ranges. For example:
The total number of RINs generated in 2014 that are available for compliance includes those that were generated for renewable fuel produced or imported in 2014 as recorded in the EPA-Moderated Transaction System (EMTS), minus any RINs that have already been retired for non-compliance reasons or would be expected to be retired to cover exports of renewable fuels. As described in the NPRM, the total number of RINs actually retired to cover exports of renewable fuel in 2014 will only be recorded in EMTS after the compliance demonstration deadline for 2014 has passed. Since the compliance deadline for all 2014 RIN exports has not yet passed, we have based our estimate of RIN retirements for renewable exports on renewable fuel export information from EIA.
Actual supply in 2014 is shown in Table II.C-2 below. Further details are provided in a memorandum to the docket.
In the NPRM, we said that we expected that the market could achieve some growth in 2015 in comparison to 2014 volumes despite the fact that the proposal was being released well into 2015. Our proposed volumes for 2015 represented moderate growth in supplies of both advanced biofuel and total renewable fuel deemed possible based on annual growth in previous years, but tempered by the fact that the market would not have the lead-time envisioned by the statute. Although the proposed volumes could not be construed as requirements, we believed that they would provide signals to the market concerning the levels that EPA believed were achievable, and that the market would respond to these signals. In fact this appears to have been the case, as monthly supply in the months following release of the NPRM was higher than monthly supply prior to the NPRM.
This final rule is being released after 11 months of the year has passed. As was the case for 2014, the final standards that we set for 2015 cannot affect supply that occurred over the previous 11 months, and there is insufficient lead time available to impact renewable fuel use in the remaining one month. Thus we believe that the basic approach we have taken in this final rule to establishing 2014 requirements should also be applied to 2015, with differences only to account for there being an incomplete data set for 2015. The more general issues (
While this final rule is being released after 11 months of the year has passed, the data for determining actual supply was only available for the first 8 to 9 months of the year. EMTS data on RIN generation and various adjustments for RINs that cannot be used for obligated party compliance was available through September, while data on renewable fuel exports from the Census Bureau was available through August.
In the NPRM we requested comment on whether the volume requirements that we were proposing for 2015 appropriately reflected challenges associated with the marketplace increasing renewable fuel supply in response to the rulemaking in the time available. Parties that believed we should set the applicable volume requirements for 2014 at the statutory targets typically said the same for the 2015 volume requirements, arguing that carryover RINs could meet any shortfall in the supply of renewable fuel. Others agreed that the proposed 2015 volume requirements were reasonable and pointed to the fact that the situation for 2015 was essentially the same as for 2014 in that the standards would be set after most of the year had passed and beyond a date where the final rule could influence renewable fuel use.
In general, it is our assessment that comments provided by stakeholders did not include any compelling arguments or information that would lead us to believe that the final volume requirements for 2015 should be set higher than actual supply (including a projection of actual supply for months where data are not available). While some stakeholders expressed a belief that higher standards can influence market dynamics in 2015, we do not believe that this is the case given that this final rule is being released after 11 months of the year has passed. The only possible basis for setting the final volume requirements higher than actual supply would be the availability of carryover RINs, which as described in Section II.H we believe should not be intentionally drawn down in the context of standard-setting at this time.
Some obligated parties argued that the final percentage standards for 2015 should be set at the proposed levels since they were using the proposed percentage standards to guide their acquisition of RINs in the second half of the year. These parties made a similar argument regarding the 2014 percentage standards. However, all regulated parties were aware that the final standards could differ from those we proposed based on comments we received, new information that became available, and new or different EPA analysis. Moreover, the statutory volume targets (which a number of commenters argued should be the basis for the final 2014 standards) provided notice of the maximum volumes that EPA could require in finalizing the rule. As with 2014, we are using the cellulosic waiver authority as the basis for reductions in advanced biofuel, and for an equal reduction in the total renewable fuel volume requirement. For total renewable fuel, we are also using the general waiver authority, based on a determination of inadequate domestic supply, to provide an additional increment of volume reduction to result in a volume requirement equal to our assessment of RINs generated in 2015 that will be available for compliance.
The proposed 2016 volume requirement of 17.40 billion gallons was intended to represent the total supply of renewable fuel for use in transportation fuel in the United States, including both domestic production and imports of renewable fuel, in light of a policy that is intended to induce significant change. In determining the proposed 2016 volume requirements, we targeted substantial growth compared to 2014 and 2015, consistent with the fact that they are being set prospectively, on the schedule contemplated by Congress, and therefore can be expected to influence the increased production and use of renewable fuels in 2016.
Responses to the proposed 2016 volume requirement for total renewable fuel were mixed. Some stakeholders, such as The American Council on Renewable Energy and Trestle Energy, indicated that the proposed volumes appeared to be reasonable given the challenges associated with increasing supply. Stakeholders who were obligated parties, petroleum marketers and retailers, livestock owners, or engine owners typically said that the proposed volumes were too high. These stakeholders typically pointed to expected high costs, adverse impacts on vehicles or engines, or a general inability of the market to supply the proposed volumes. Many treated the constraints associated with the E10 blendwall as representing a firm barrier that could not or should not be crossed. In contrast, renewable fuel producers and farmers generally believed the
In general, we did not find arguments for reducing the volume requirements below the proposed levels compelling. Our response to comments associated with the E10 blendwall, demand for E0, and the use of higher ethanol blends such as E15 and E85 are discussed in more detail in Section II.E.2 below. In short, stakeholders provided no compelling evidence that a nationwide average ethanol concentration in gasoline cannot exceed 10.0% in 2016. Moreover, the RFS program will not force consumers to use E15 in engines where compatibility may be a concern, such as nonroad engines or vehicles manufactured before 2001, as some commenters suggested. The flexibility inherent in the program will also continue to permit the use of E0 if there is demand for it, addressing concerns about misfueling with higher ethanol blends. Further discussion of these issues can be found in the Response to Comments document.
While we do not believe that the total renewable fuel volume requirement for 2016 should be reduced below the proposed level, we continue to believe that challenges associated with growth in the supply of renewable fuels precludes attainment of the statutory volumes in 2016. Constraints including but not limited to the E10 blendwall, are real and can only be partially overcome by a responsive market in the near term. We acknowledged in the NPRM that the market would need to respond by increasing domestic production and/or imports of those biofuels that have fewer marketplace constraints, by expanding the infrastructure for distributing and consuming renewable fuel, and by improving the relative pricing of renewable fuels and conventional transportation fuels at the retail level to ensure that they are attractive to consumers. However, we also stated our belief in the NPRM that the market is not unlimited in its ability to respond to the standards we set, particularly over the relevant timeframe. Thus while there can be significant growth in renewable fuel supply from 2015 levels in 2016, we continue to believe that the statutory target for total renewable fuel cannot be reached in 2016.
In making a determination to exercise our authority to waive volumes, our objective is to exercise the general waiver authority only to the extent necessary to address the inadequacy in supply.
In the NPRM we explained that our approach to determining the applicable volumes of total renewable fuel included estimating the market potential for overcoming the various constraints at play. This approach was based on consideration of the potential future contributions from sources of renewable fuel, including ethanol, biodiesel and renewable diesel, and other types of renewable fuels, in the aggregate rather than individually, and in the context of a market that is responsive to the standards that we set. We explained that we believed this approach to be more straightforward and more likely to provide a correct projection of the available domestic supply of renewable fuels in 2016 than the proposed approach we described in the November 29, 2013 proposal for the 2014 standards.
In response to the NPRM, many parties presented alternative suggestions for volume requirements for total renewable fuel in 2016, either higher or lower than the 17.40 billion gallons that we proposed, and generally based these suggestions on an approach more akin to that used in our November 29, 2013 proposal. That is, they made their own estimates of the achievable levels of various types of renewable fuels that could be produced or renewable fuel blends that could be consumed and used these estimates as the basis for suggesting higher or lower volume requirements. We recognize that an assessment of the contribution that individual sources can make to the total can be valuable in demonstrating both the achievability of the volume requirements and the extent to which they represent the supply of renewable fuels in 2016. In the November 2013 proposal we took a very granular approach to assessing the potential supply of renewable fuels by assessing the potential for growth of individual renewable fuels, quantifying the uncertainty around each assessment, and using a Monte Carlo simulation to assimilate the individual assessments. In our June 2015 proposal we took a much more holistic approach to assessing renewable fuel supply, recognizing that the individual components of the supply are interconnected and do not operate in isolation. We received many comments suggesting that the holistic approach was too broad, that the methodology EPA used in deriving the volume requirements was not sufficiently clear, and that EPA should more closely evaluate potential for growth in the use of individual fuel types as part of its analysis. We continue to believe that because of the complexities of the fuels market, the structure of the standards, and the inherent difficulties associated with predicting which of the many possible scenarios the market will choose to meet any given standard, a very granular approach is not likely to produce an accurate representation of the maximum volume that can reasonably be achieved. At the same time, we recognize the value in better identifying the information on which our technical judgements are based in making an overall assessment of the volume of renewable fuel that can be supplied in 2016.
For the final rule, therefore, we are individually analyzing the potential for growth in broad categories of renewable fuel: Ethanol, biodiesel, and other types of renewable fuels. We believe that
The fuels marketplace in the United States is large, diverse, and complex, made up of many different players with different, and often competing, interests. Substantial growth in the renewable fuel volumes beyond current levels in 2016 and beyond will require action by many different parts of the fuel market, and a constraint in any one part of the market can limit the growth in renewable fuel supply. Whether the primary constraint is in the technology development and commercialization stage, as has been the case with cellulosic biofuels, or instead related to the infrastructure build out and fuel consumption, as is recently the case with ethanol in the United States, the end result is that these constraints limit the available supply of renewable fuel.
The constraints on supply to vehicles and engines range from legal limitations on the ethanol concentration that can be used in different types of gasoline-powered vehicles to market-based constraints associated with production, distribution, and use of renewable fuels and the ability for these fuels to compete with traditional petroleum-based fuels. A list of the many factors that affect the growth of renewable fuel supply in the United States in 2016 and beyond is shown in Table II.E.1-1 below.
None of the market components listed in Table II.E.1-1 are in and of themselves an insurmountable barrier to growth of renewable fuels. Rather, they are challenges that can be overcome in a responsive marketplace given enough time and in many cases with considerable investment. In this regard the key question is not whether renewable fuel volumes can increase, but rather how quickly. Moreover, the speed with which the market can engage in actions to overcome these constraints is a function of whether and how effectively parties involved in the many diverse aspects of the renewable fuel marketplace respond to the incentives provided by the RFS and other programs designed to incentivize renewable fuel use.
To a certain degree, the RFS standards themselves can help provide certainty and help drive the necessary investments up and down the supply chain by creating expectation for what overall demand will be. However, the RFS standards are still limited in this regard in that they are issued on an annual basis immediately prior to the compliance year (thus offering little lead-time) and provide only an indirect signal to the various components of the marketplace. In order for volumes of many of the renewable fuels to grow it requires a rather complicated series of investments decisions and actions by a wide range of independent businesses in the marketplace, often by companies that are in direct competition with one another. This can make it difficult for the market to increase supply quickly. The significant fluctuations in the price of oil since 2010 further complicates the investment decisions necessary to enable further growth in the supply of renewable fuels.
Fuels that are or have been more easily integrated into the marketplace (
Also, the signal from the RFS standard is for the general categories of cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuels. The standards are not specific to a fuel type (
In addition to the market needing time to sort out its investment decisions, it should also be emphasized that it takes time for the market to implement investment decisions it has already made. Each market segment has a certain degree of implementation time associated with it. For instance, diverting relatively small amounts of feedstocks from existing uses could potentially occur in a matter of weeks in some cases and months in others, whereas diverting larger amounts or bringing some new feedstocks to market (
Cellulosic biofuel provides an example. Growth in cellulosic biofuel volumes and their contribution to the advanced biofuel standard has been limited, and certainly less than Congress envisioned, since the outset of the RFS program due to challenges related to technology development and commercialization. Despite a number of years and billions of dollars spent in research and development of cellulosic biofuel technologies, and several attempts at commercializing these technologies, deriving liquid fuels from cellulosic feedstocks has lagged well behind not only the statutory targets, but also our annual projections. These technologies are just now beginning to introduce significant volumes of liquid cellulosic biofuels to the market as described in Section IV. In contrast, more rapid growth has occurred with CNG/LNG derived from biogas, which was recategorized as a cellulosic biofuel in 2014. Biogas did not face the same renewable fuel production challenges as liquid biofuels, and since it could also utilize the existing natural gas distribution, vehicle, and refueling infrastructure use of cellulosic CNG/LNG derived from biogas as transportation fuel has increased rapidly since 2014. The inclusion of cellulosic biogas in our projections has allowed total cellulosic biofuel volumes to grow rapidly through 2015 and into 2016. However, even this significant and short term growth will become limited as cellulosic biogas will soon face constraints associated with sufficient consumption capacity since the fleet of natural gas vehicles that use CNG/LNG derived from biogas as a transportation fuel is currently limited, and it will likely take time for it to grow.
Even with the RFS standards in place to drive growth, the market itself still has considerable uncertainty in terms of how it will respond to those standards and whether and to what degree it can overcome the various constraints within the next year. These facts make it challenging for the Agency to project the supply of renewable fuel in 2016, as we cannot predict with precision the progress that can be made for every component in the market for all the different fuels, or for the renewable fuel supply as a whole. Every existing and potential renewable fuel is impacted by a number of factors that may limit the renewable fuel's growth potential over the coming year. If EPA were to establish standards that cannot be achieved it would likely result in a significant increase in renewable fuel and RIN prices, and obligated parties would be forced into RIN deficits or even non-compliance. This could serve to erode the certainty and stability for renewable fuel volume growth that the RFS standards are intended to provide. At the same time, there are also reasons for optimism that significant progress can be made in overcoming some of the constraints on renewable fuel use in the coming year. We do not think it would be appropriate to ignore either the potential for growth, or potential challenges on growth, in making our assessment of potential volumes. Because the RFS program allows for a variety of different paths to contribute to overall compliance with the standards, significant growth overall is possible in the coming year even if there is less certainty that individual paths might be able to grow significantly.
In the NPRM we discussed the fact that renewable fuel supply in 2013
In providing these comments, these stakeholders took the view that the market is essentially unlimited in its ability to respond to the standards that EPA sets. That is, if EPA were to establish the applicable volume requirements at the statutory targets and by the statutory deadlines, the market would be able to meet those volume requirements. We disagree. The constraints discussed above, and in greater detail in the following sections, are both real and are expected to continue for at least the next several years, even as volumes produced and used are expected to grow. Our investigations clearly demonstrate that the market is not unlimited in its ability to respond to the standards that we set.
A review of the market response to the RFS standards in 2013 demonstrates that constraints on supply are real. In 2013 EPA had never used its waiver
Some stakeholders said that the volume requirements for 2014, 2015, and 2016 that we proposed in the June 2015 NPRM reflected EPA's view that the various constraints represent absolute barriers to the expanded use of
The following sections discuss in further detail our assessment of broad categories of renewable fuel expected to contribute to the total supply of renewable fuel in 2016. We also discuss the particular constraints that we expect will be relevant in projecting the supply of these renewable fuels in 2016.
Ethanol is the most widely produced and consumed biofuel, both domestically and globally. Since the beginning of the RFS program, the total volume of renewable fuel produced and consumed in the United States has grown substantially each year, primarily due to the increased production and use of corn ethanol. Prior to 2013 the primary constraints to the supply of ethanol were the amount of ethanol that could be produced and imported into the United States, and the ability of the market to distribute the ethanol across the country. Virtually all existing retail infrastructure and vehicles were compatible with gasoline containing up to 10% ethanol, and therefore the ethanol supply grew with the production capacity of the domestic ethanol industry and the rapid build-out of the ethanol distribution and terminal blending capacity to supply E10. A combination of factors, including the demand certainty provided by the RFS and the ability to profitably market ethanol in E10 blends due to relatively high gasoline prices, relatively low corn prices, and the blenders tax credit (available through 2011), provided the economic incentive for the investment that led to rapid increases in ethanol production and distribution capacity, dramatically increasing the total supply of ethanol to vehicles.
However, as the gasoline market became saturated with E10 in 2013 and 2014, the constraints on the supply of ethanol began to change. The supply of ethanol depends on the overall demand for gasoline as well as the percentage of ethanol blended into gasoline. In order for the supply of ethanol to increase it now needs to be sold in higher level blends, such as E15 or E85. These fuels are not compatible with much of the existing retail infrastructure and cannot be used in all vehicles and engines. The low number of retail stations selling these higher level ethanol blends, along with poor price advantages for these higher level blends compared to E10, a limited number of FFVs, and ineffective marketing of these fuels represent the biggest challenges to the continued growth of the supply of ethanol as a transportation fuel in the United States. As can be seen in Figure II.E.2-1 below, the rate of growth in the use of ethanol as a percentage of the motor gasoline market decreased dramatically as it approached an average concentration of 10% nationwide.
Since 2013, the number of FFVs in the fleet and the number of retail stations offering E15 and E85 have grown, and we believe that this growth has been influenced in part by the RFS program. However, this growth has been very modest. The number of retail stations offering E85 was about 3,000 by the end of 2014, representing only about 2% of stations nationwide.
While the price of the RIN that is generated and assigned to a gallon of ethanol theoretically should allow E85 to be priced at a level to encourage consumers to purchase these fuel blends when available (cheaper than E10 on a per mile basis), data that EPA has reviewed suggest this is unlikely in 2016. In the sections that follow we first discuss the data supporting our conclusion that the RIN is currently an inefficient mechanism for reducing the price for higher level ethanol blends at retail, and therefore unlikely to be able to significantly impact the supply of ethanol in the United States in 2016. We then discuss in detail our projected supply of E0 (which impacts the supply of ethanol by reducing the gasoline pool into which ethanol can be blended), E10, E15, and E85. We note that throughout this discussion we do not differentiate between ethanol produced from corn, sugarcane, or any other feedstock. This is because we believe that the supply of ethanol in 2016 will not be limited by the amount or types of ethanol produced, but rather by other constraints as discussed below. Therefore, in projecting the ethanol supply for the purpose of setting the total renewable fuel volume requirement, the feedstocks used to produce the ethanol and any particular constraints related to these individual feedstocks are not relevant considerations.
Based on comments received in response to the NPRM, it is clear that the E10 blendwall is viewed differently by different stakeholders. Some stakeholders, most notably refiners, expressed the belief that the constraints on sales of higher ethanol blends such as E15 and E85 are so substantial, and the time available to address those constraints for 2016 is so limited, that exceeding a pool-wide ethanol content of 10% is either unattainable or could occur only at great cost with corresponding increases in fuel prices and disruption to fuel supplies. Other stakeholders, primarily ethanol proponents, instead argued that substantially higher volumes of E15 and/or E85 can be reached in 2016 with available infrastructure, despite insufficient efforts in the past to expand infrastructure for E15 and E85. These stakeholders generally argued that higher standards would result in higher RIN prices, which in turn would result in greater price discounting for E15 and E85 in comparison to E10 and thus higher sales of those higher level ethanol blends. They further argued that higher RIN prices, even if significant, would not result in higher fuel prices to consumers.
Our view of the E10 blendwall falls between these two viewpoints. We believe that there are real constraints on the ability of the market to exceed a pool-wide ethanol content of 10%. However, these constraints do not have the same significance at all levels above 10% ethanol. Instead, for the state of infrastructure that can be available in 2016, the constraints represent a continuum of mild resistance to growth at the first increments above 10% ethanol and evolve to significant obstacles at higher levels of ethanol. This gradual nature of the impacts of the constraints is due to the fact that small increases in ethanol volumes above 10% are likely to be possible with changes in RIN prices, while larger increases are only possible with changes to infrastructure that cannot occur as quickly. The transition from mild resistance to significant obstacles occurs by degrees rather than all at once, and overcoming the constraints will likely require different solutions over different time periods. It is difficult to identify the precise boundary between volumes that can be achieved with mild difficulty in 2016 and those that likely cannot realistically be achieved over the next year. Ultimately the market will determine the extent to which compliance with the annual standards is achieved through the use of greater volumes of ethanol or other, non-ethanol renewable fuels.
The volume requirements that we are setting today, particularly for 2016, are intended to result in pressure on the market to exceed the E10 blendwall, but we do not believe the 2016 standards are capable of overcoming all constraints. Whether the market will respond to the standards we set by increasing the use of E15-E85 is unclear, as it is a function of actions taken by various fuel market participants, including obligated parties, renewable fuel producers, distributors and marketers, gasoline and diesel retailers, and consumers. Nevertheless, the standards we are setting acknowledge that opportunities exist to exceed the E10 blendwall as described more fully in Section II.G below.
Many stakeholders, regardless of their views on whether the E10 blendwall can or should be a consideration in the determination of applicable volume requirements, made the implicit assumption in their comments that the total volume of ethanol that would be used was identical to the volume of non-advanced (
The amount of ethanol associated with the E10 blendwall (the volume of ethanol that could be consumed if all gasoline was E10) is driven by the total demand for gasoline, and thus, if all other considerations are equal, ethanol consumption will tend to increase if gasoline consumption increases and ethanol consumption will tend to decrease if gasoline consumption decreases. In the NPRM we used a projection of 2016 gasoline demand from the May, 2015 version of EIA's Short-Term Energy Outlook (STEO), as
In response to our proposed intention to use gasoline projections from EIA, several stakeholders indicated that EIA's projections of gasoline demand have historically tended to be lower than actual demand. They requested that we make an adjustment to EIA's projections to ensure that they are as accurate as possible. We investigated this issue and determined that by and large EIA's projections of gasoline demand have not, in fact, been lower than actual demand. As described in a memorandum to the docket, projected gasoline demand has more often been higher than actual demand, though the errors in demand projections were highly variable.
The RIN system is the mechanism established by EPA for obligated parties to demonstrate compliance with the standards, and is designed to provide obligated parties flexibility in the means they use to achieve compliance. The RFS program, acting through the mechanism of the RIN system, also operates to provide an incentive for renewable fuel producers to increase the production of renewable fuels by, in effect, increasing the price blenders and obligated parties are willing to pay for renewable fuels.
The RIN system should also incentivize the development of the renewable fuel distribution infrastructure by helping to decrease the net cost of renewable fuels. As mentioned above, when fuel blenders or obligated parties purchase renewable fuel directly from renewable fuel producers this fuel generally comes with an assigned RIN. When a fuel blender blends the renewable fuel with petroleum-based fuel to create finished transportation fuel, the blender is able to separate and sell the RIN that was previously assigned to the renewable fuel. Whatever price the fuel blender or obligated party receives when they sell the separated RIN can be thought of as reducing the net purchase price of the renewable fuel. For example, if a fuel blender purchases a gallon of ethanol with an attached RIN for $1.50 and, after blending the ethanol to create transportation fuel, sells the RIN for $0.50, the blender has effectively paid $1.00 for the gallon of ethanol without the RIN. The higher the price received for the RIN, the lower the effective cost of the renewable fuel compared to the petroleum fuel it displaces (and the higher the price of the petroleum fuel or blendstock necessary for the obligated party to recoup the cost of the RIN). Higher RIN prices therefore enable fuel blenders to market finished fuels that contain renewable fuel components at lower prices by allowing them to purchase renewable fuels for a lower effective price. A fuel blender can choose not to reduce the price of the blended fuel and keep the value associated with the RIN as profit, or they can attempt to increase their sales volumes and market share by passing along the lower effective purchase price of the renewable fuel to the customers in the price of their fuel blends.
Finally, the RFS program, operating through the RIN system should also increase the consumption of renewable fuels by ultimately decreasing the cost of renewable fuel blends to consumers relative to the cost of fuel blends that do not contain renewable fuels. RIN prices can be used by blenders to decrease the effective cost of renewable fuel used to create transportation fuel. As more market participants enter the renewable fuel blending and distribution marketplace, and consumers learn to accurately compare the cost of E10 and other higher-level ethanol blends, over some period of time the competition among renewable fuel blenders and distributors should result in a greater portion of the reduced effective cost of renewable fuel blends enabled by the sale of the RIN to be passed on to fuel consumers. Retail prices for transportation fuel that contains renewable fuels should then reflect these cost reductions relative to transportation fuel containing lower volumes of renewable fuel (or no renewable fuel) in proportion to their renewable fuel content; transportation fuel containing a greater percentage of renewable fuels should be priced lower than transportation fuel containing a lesser percentage of renewable fuel. Motivated by the lower fuel prices for transportation fuel containing greater renewable fuel content (such as E85) relative to fuels containing less renewable fuel (such as E10), consumers who own flexible fuel vehicles (FFVs) will then choose to purchase increasing volumes of renewable fuel. If the price discount for renewable fuels is great enough for a long enough period of time, more consumers may also be motivated to purchase vehicles capable of utilizing fuels containing higher percentages of renewable fuels, such as FFVs.
Several commenters pointed to the ability of RIN prices to reduce the price of fuels containing higher concentrations of renewable fuels, such as E85, as a primary justification for establishing a higher total renewable fuel standard. They claimed that if EPA established a higher standard than proposed, RIN prices would rise, retail prices for E85 would fall relative to those for gasoline, and consequently consumers would purchase greater volumes of E85. In effect, these comments said, the RIN mechanism would ensure that greater volumes of renewable fuel would be consumed, the renewable fuels market would expand, and sufficient RINs would be generated to meet the higher standards. Some commenters also noted that since EPA agreed that higher RIN prices would not be expected to impact E10 prices there would be no economic harm in setting a higher total renewable fuel standard, and that this action was necessary in order to drive renewable fuel consumption beyond the E10 blendwall. In contrast, other commenters claimed that higher RIN prices would not have the desired effect of increasing the consumption of renewable fuels, at least not in the short term, and that high RIN prices could have adverse economic impacts, including higher diesel fuel prices, as EPA has already acknowledged.
If higher RIN prices, which would likely result from a higher total renewable fuel standard, are to lead to substantial increases in E85 consumption, two independent events must occur. First, the higher RIN prices must lead to lower E85 retail prices. If this does not happen consumers would have no incentive to purchase additional volumes of E85 as a result of higher RIN prices. Second, FFV owners must respond to these lower prices by purchasing E85 instead of E10 when E85 is available. Authors such as Babcock and Pouliot, who have written about the ability for RINs to drive significant increases in E85 sales volumes, optimistically assume that RIN prices are passed through to E85 prices and that consumers are highly responsive to E85 prices.
EPA examined available data in an attempt to determine whether or not higher RIN prices resulted in lower E85 prices at retail, and whether lower E85 retail prices lead to substantial increases in E85 sales, as economic theory would suggest would be the case when FFV owners receive better value for purchasing E85 rather than E10. Our analysis suggests that the market was not sufficiently responsive to higher RIN prices to drive large increases in E85 sales volumes in the period of time at question. For instance, we found that between January 2013 and July 2015 only 44% of the RIN value was passed on to E85 customers in the form of lower E85 retail prices.
While economic theory and the illustrations above support the idea that RINs can serve as a mechanism to increase the production, distribution, and consumption of renewable fuels, it is important to note that this result is dependent on the marketplace working both efficiently and quickly. In reality, there is a timing component associated with each of the steps outlined above. Renewable fuel producers and investors must see a sustained, profitable market for renewable fuels before they will be willing to invest in the construction of additional fuel production capacity, which may take years to construct and bring online. Fuel blenders and distributors must see sustained profit opportunities before they are willing to invest in new infrastructure to increase their capacity to blend and distribute renewable fuels. Market competition must increase before fuel blenders and distributors are willing to pass along all of the reduced effective price of renewable fuel (in essence, the value of RINs) to consumers at retail. New fueling infrastructure will need to be built to facilitate the growth in sales of
This suggests that while the RFS program can be effective at increasing the renewable content of transportation fuels over time, it likely cannot substantially increase the available supply of renewable transportation fuels to consumers in the United States to the volumes envisioned by Congress in the short term. The program, as Congress clearly indicated, is intended to grow over a period of years. Market participants require long term certainty in EPA's approach to establishing renewable fuel standards to allow them to effectively plan for the most efficient and least costly ways to provide the needed fuels and comply with the standards. EPA remains committed to promoting renewable fuel production and use in the United States, and we believe the RFS program will be effective in achieving this end. Due to the current state of the renewable fuel production, distribution, and consumption marketplace, we believe the required volumes of renewable fuel must be reduced below the statutory levels in the immediate near term. An approach that acknowledges supply constraints when determining the appropriate volume requirements is necessary, is consistent with the statute and Congressional intent, and is the intended outcome of this action.
While the use of one gallon of E15 can increase the amount of ethanol used by about 50% in comparison to an energy-equivalent gallon of E10, the use of one gallon of E85 can increase the amount of ethanol over that in an energy-equivalent gallon of E10 by about a factor of nine.
All stakeholders agreed that actual sales of E85 in the past have been low. A number of parties referenced E85 estimates made using EIA data of about 77 million gallons in 2014. This estimate was based on data collected from two sources: Refiners and blenders, and ethanol production facilities.
Although 150 million gallons is about twice as high as the estimate discussed above based on EIA data, it still does not indicate an overall preference among FFV owners for E85 when E85 has been available. Indeed, based on other comments received it is clear that the experience at retail has been mixed. Some retailers, such as 3G Energy, found that E85 sales were good and they were able to make a profit from selling it. Others, such as U.S. Ethanol, found E85 sales to be very poor and have consequently converted E85 tanks to other uses. Other retailers, including some in the Midwest, have recently made decisions to market E0 in lieu of E85 due to greater relative consumer interest in E0 in the current economic climate. There was no consistent trend among comments provided by parties attempting to sell E85 on the attractiveness of the product to FFV owners.
Most stakeholders agreed that one important factor in low historical sales of E85 is the small number of retail stations offering it. According to DOE's Alternative Fuels Data Center, the number of E85 stations reached 2,941 in August of 2015. While the growth in E85 stations was substantial in late 2010 and early 2011—equivalent to about 400 new stations per year—since then growth in the number of E85 stations has been considerably slower at about 120 per year. Most recently growth may have plateaued due to the lower price of crude oil, reducing the attractiveness of E85 to consumers and thus the willingness of retailers to invest to make it available at their stations.
A number of stakeholders cited a recent grant program sponsored by USDA that is designed to provide a total of $100 million for updated and expanded infrastructure at retail for higher level ethanol blends.
Even if the number of E85 stations did reach 3,300 in 2016, it would represent an increase of only 12% in comparison
As discussed in more detail in Section II.E.2.ii, we agree generally that the market could theoretically be expected to work in this way in response to higher standards. However, we have investigated the specific mechanisms involved and have concluded that the process is far more constrained in the immediate future than most ethanol proponents believe it to be. These constraints, discussed further below, make it inappropriate to estimate total potential E85 consumption based on the consumption capacity of all FFVs, or even just those FFVs with reasonable access to E85. It is similarly inappropriate to assume that the E85 throughput at a given retail station can be the same as typical throughput rates for E10. Such estimates demonstrate what is physically possible, not what is likely to occur given the way that the market actually operates under the influence of high RIN prices as evidenced by the limited growth in 2013 despite the standards that were in place.
Based on an analysis of available data, we have determined that at this point in the market's development, the constraints on the ability of applicable standards to drive increased consumption of E85 in 2016 are twofold:
• Higher RIN prices are not likely to produce dollar-for-dollar equivalent reductions in E85 retail prices under current circumstances wherein the number of E85 stations is too few to compel competition between them.
• Reductions in E85 retail prices are associated with only moderate increases in E85 sales to FFV owners.
We have also found that greater E85 price discounts relative to gasoline have not been associated with the substantial increases in E85 sales volumes that would be needed to reach the total E85 consumption levels that some stakeholders said are possible. Based on an analysis of E85 consumption in five states (including the frequently cited E85 consumption data from Minnesota) and the E85 price reductions relative to gasoline in those states, as shown in Figure II.E.2.iii-1 below, we estimate that increasing the E85 price reduction from the 2014 nationwide average of 17.5% to 30% would have increased total 2014 E85 consumption to about 200 million gallons, an increase of only 33%. A recent paper published by Babcock and Pouliot estimated similar sales volumes for these price reductions, projecting that consumers would consume about 250 million gallons of E85 if it was priced at parity on a cost-per-mile basis with E10 (approximately 22% lower on a price-per gallon basis).
Our observations and analysis lead us to conclude that if EPA were to dramatically increase the total renewable fuel volume requirement for 2016 above the level we proposed, in the near term we would expect to see sharply higher RIN prices, but this would not translate into dramatically higher E85 sales volumes in the near term. However, sustained higher RIN prices would, over the longer term, be expected to provide greater incentive for the market to expand infrastructure.
One of the ways that the RFS program can increase the supply of renewable fuels in the United States is by incentivizing the market to continue to transition from E0 (gasoline containing no ethanol) to E10 and other higher level ethanol blends. While the RFS program provides a significant incentive for this transition, the continued availability of E0 in certain markets is also something that we believe we must consider in determining the supply of ethanol in 2016. E0 continues to be marketed in many parts of the country, often at a significant cost premium to E10, including in the Midwest where ethanol is most readily available at the lowest cost. In the NPRM we discussed the potential for ongoing use of E0 through 2016 and into the future. We anticipated that E0 use would remain fairly limited and would tend to decrease over time given the widening use of ethanol overall. We also highlighted one particular market segment, recreational marine engines, that we believed would be particularly difficult to transition from E0. While most nonroad engines in use today can operate on E10, recreational marine engines are a potentially special subcategory. Because such engines are used in a water environment there is a greater potential for water contamination of the fuel. For gasoline that contains ethanol, the ethanol-water mixture may then separate from the gasoline and cause engine damage. As a result, some recreational marine engine owners seek out E0. We believe that we should take into consideration the ongoing preference for some E0 in this context.
In the NPRM we discussed our investigation into the volumes of E0 that are in demand by owners of recreational marine engines. We expressed our view that it is most likely that any recreational marine engines refueled at retail service stations would use only E10 since E0 is rarely offered at retail. Moreover, only a small minority of recreational marine engines refuel at marinas where E0 is more likely to be available. Based on this assessment, we estimated that about 124 million gallons of E0 would be consumed by recreational marine engines in 2016. We estimated that the impact of this volume of E0 used in such applications on the total supply of renewable fuel in 2016 would be very low, and would likely be offset by the small expected use of E15. As a result, we omitted E0 and E15 from the scenarios described in Table II.D.2-2 of the NPRM.
Stakeholders that commented on this topic generally agreed that E0 will continue to exist, but argued that our estimates of the likely volumes of E0 were too low. For instance, in their joint comments on the NPRM, the American Petroleum Institute and the American Fuel and Petrochemical Manufacturers (API/AFPM) suggested that there is ongoing demand for E0 at a level of at least 3% of the total gasoline pool. This would be the equivalent of about 4 billion gallons of E0, considerably higher than the 124 million gallons we estimated in the NPRM. They based this position on data from EIA on the supply of non-ethanol conventional gasoline from refineries, importers, and blenders, corrected to account for exports and stock changes. We investigated the EIA data on which the API/AFPM comments were based, and concluded that it is not an appropriate basis for determining the amount of E0 actually sold at retail, and thus cannot be used to estimate likely E0 sales. While the EIA data at issue does take into account the production of E10 by large terminals from E0 supplied by refiners, it does not account for E10 produced downstream at smaller facilities, truck blending, and blending at retail. Given that there are a number of states that require the supply of E0 at the wholesale level explicitly to permit downstream blending with ethanol, the estimates of E0 supply referenced by API/AFPM that were generated from EIA gasoline supply data overestimate the potential demand for E0 at retail.
In response to the NPRM, a number of organizations disagreed with our assessment of the potential volume of E0 consumed by recreational marine engines. Several stakeholders pointed to EPA's own NONROAD model as providing much higher estimates of total gasoline consumption by these engines. We agree that total gasoline consumption by recreational marine engines is substantial—about 1.55 billion gallons according to a recent estimate from the EPA's NONROAD model.
Based on the information provided by stakeholders and our own analyses, we believe that the volume of E0 consumed by recreational marine engines or otherwise demanded by the marketplace could be as high as several hundred million gallons in 2016. As a result, we have included some estimates of E0 in the volumes scenarios described in Section II.G below. Those scenarios demonstrate that our final volume requirements can be met even in cases where some volume of E0 remains in the marketplace.
In the NPRM, we discussed the fact that E15 is approved for use in model year 2001 and newer motor vehicles, but that we expected the volume of E15 used in 2016 to be low. We based this assessment on the fact that the number of retail stations offering it at the time of the NPRM was only about 100 out of the approximately 152,000 retail stations in the U.S. We estimated that, at most, the use of E15 in 2016 would
While some stakeholders agreed with our assessment, others said that we had significantly underestimated the volume of E15 that could be consumed in 2016, and that doing so biased our proposed volume requirements low. These stakeholders, including the American Coalition for Ethanol and Growth Energy among others, pointed to both the large number of vehicles that are legally permitted to use E15 and opportunities for expanding the number of retail stations that offer E15.
The number of vehicles that are legally permitted to use E15 is large. Model year 2001 and later vehicles comprise about 85% of the current in-use fleet, or about 195 million vehicles. These vehicles have a total annual gasoline consumption capacity of more than 120 billion gallons, so changing their fuel consumption type from E10 to E15 could increase total ethanol consumption by more than 6 billion gallons. However, as pointed out by several stakeholders, being legally permitted by EPA to operate on E15 for emission compliance purposes under the CAA does not necessarily enable expanded use of E15. These stakeholders highlighted that the operator's manuals and manufacturer warranties for vehicles manufactured before 2012 make no mention of E15 because E15 did not exist at the time that those vehicles were manufactured. Manufacturers have been increasingly citing E15 as an acceptable fuel in owner's manuals for various models since 2012, but as of today these statements are not universal for all makes and models. Whether these facts would cause some vehicle owners to avoid E15 is not clear. This situation is similar to the historical situation with E10. E10 has been permitted under the CAA to be used in all highway vehicles and nonroad engines for many years. Nevertheless, it took years for the vehicle manufacturers, especially the nonroad engine manufacturers, to warrant the use of E10 in their products.
Regardless, we do not believe that the number of vehicles that are legally permitted to use E15, or the number of 2001 or later model year vehicle owners who would choose to use it, are the predominant factors in determining the volume of E15 that is likely to be consumed in 2016. Instead, it is the number of retail stations offering E15 in 2016 that is more likely to determine how much E15 is actually consumed. In the time since E15 was approved for use, the number of retail stations registered to offer E15 has only grown to about 120, or about 0.1% of all retail stations, based on information collected by the RFG Survey Association.
Some stakeholders said that the small number of retail stations currently offering E15 is not relevant when making estimates of potential E15 sales for 2016. They claimed that the equipment at most retail stations is already compatible with E15, and typically cited two studies as the basis for claiming that the number of stations offering E15 could expand significantly in 2016: one by the National Renewable Energy Laboratory (NREL), and another by Stillwater Associates.
In evaluating the potential for expansion of E15 offerings at retail, we think it is important to consider the views of those whose business entails making determinations about which fuels to offer at retail. This perspective was provided by the Petroleum Marketers Association of America, the Society of Independent Gasoline Marketers of America, and the National Association of Convenience Stores. These stakeholders made it clear that retailers will in general offer any fuel that has the potential for generating profit. However, in the specific case of E15, there are liability concerns that make it less likely to be offered.
It may be the case that much of the equipment at many retail stations is compatible with E15, as argued in the NREL and Stillwater studies. But stakeholders arguing that there is greater E15 potential than we assumed in the NPRM oversimplify the situation. In their comments, stakeholders representing retail like those mentioned above clarified that compatibility with E15 is not the same as being approved for E15 use. Recently-amended EPA regulations require that parties storing ethanol in underground tanks in concentrations greater than 10 percent demonstrate compatibility of their tanks with the fuel, through either a certification or listing of underground storage tank system equipment or components by a nationally recognized, independent testing laboratory for use with the fuel, written approval by the equipment or component manufacturer, or some other method that is determined by the agency implementing the new requirements to be no less protective of human health and the environment. The use of any equipment to offer E15 that does not satisfy these requirements, even if that equipment is technically compatible with E15, would pose potential liability for the retailer, including concerns related to liability for equipment damage. Few retailers would be willing to assume such liability, according to comments submitted by their national associations. This issue is of particular concern for underground storage tanks and associated hardware, as the documentation for their design and the types of materials used, and even their installation dates, is often unavailable.
Insofar as equipment can be verified as being compatible with E15 and is approved as such by a testing laboratory such as Underwriter's Laboratory, many retailers are still left with significant concerns about liability for misfueling. Notwithstanding EPA regulations that require pump labeling, a misfueling mitigation plan, surveys, product transfer documents, and approval of equipment configurations, retailer associations indicated that many retail
Apart from retail stations that may already have equipment that could be used to offer E15, some stakeholders pointed to the potential for new equipment to be installed at retail, citing a number of companies which have plans for adding E15 dispensing capabilities to retail stations. However, even if all planned installations sponsored by these companies occurred by the end of 2016, they would only expand the number of retail stations offering E15 by a few hundred based on information provided by stakeholders in their comments. The matching funds provided by the USDA BIP program described above may be leveraged by these stakeholders to allow these increases in E15 retail outlets and even more to materialize.
We do not believe, based on past experience, that the core concerns retailers have with liability over equipment compatibility and misfueling would change if the RFS volume requirements were increased significantly. Therefore, setting higher volume requirements would be unlikely to result in dramatic increases in the number of additional retail stations offering E15 in 2016 beyond those that may be upgraded through USDA's BIP program. As a result, we do not believe that the E15 expansion can occur on the scale and timeframe that ethanol proponents believe it can. However, we do believe that retail infrastructure can and will change to offer more E15. To the degree that E15 is used, the volume of E85 that might be needed to reach a given volume of ethanol supply above the E10 blendwall would be less. Therefore, in the scenarios described in Section II.G below, we note that E15 could be used in addition to E85 to result in ethanol use above the E10 blendwall.
The total volume of ethanol that can be supplied in 2016 is a function of the respective volumes of E10, E15, and E85 that we believe can be supplied, while accounting for some E0. Assuming that the total demand for gasoline energy is independent of the amounts of each of these types of fuel (16.85 Quadrillion Btu based on the October, 2015 version of EIA's Short-Term Energy Outlook), estimating the volumes of E0, E15, and E85 that will be supplied provides an estimate of the remaining portion of the gasoline fuel pool which is E10.
As discussed earlier, we continue to believe that the volumes of E0 that are both in demand and needed to address potential water contamination in recreational marine engines will be very small in comparison to total gasoline demand. While information provided by stakeholders was not sufficient to permit us to precisely estimate E0 volumes, we investigated several different approaches in a memorandum to the docket that resulted in a range of about 100-300 million gallons. For the purposes of estimating total ethanol supply, we have assumed an E0 supply of 200 million gallons. Actual volumes of E0 used in recreational marine engines in 2016 may be higher or lower than this level, but we do not expect them to be significantly different than 200 million gallons. This would effectively reduce the total supply of ethanol by 20 million gallons relative to a scenario where all gasoline contained at least 10% ethanol.
Similarly, we continue to believe that supply of E15 will be very small in 2016. As described earlier, the primary limitation in E15 supply is the small number of retail stations offering it. While the number of E15 stations can grow significantly in 2016, we do not believe that it can reach the many thousands that some stakeholders said was possible given that the total number of such stations is about 120 currently and stakeholders representing retail service stations have cited potential liability as an ongoing concern. For the purposes of estimating total ethanol supply, it might be possible that total E15 supply in 2016 could reach 320 million gallons, based on an estimate of an average of about 700 stations offering E15 in 2016 as described in Section II.E.2.v. Actual volumes of E15 in 2016 may be higher or lower than this level, but 320 million gallons represents our best estimate of the most likely maximum volumes that can be reasonably be attained by a market responsive to the RFS. This would effectively increase the total supply of ethanol by 17 million gallons relative to a scenario where the volumes assumed here to be used as E15 are instead used as E10.
Finally, our detailed analysis of E85 has led us to conclude that the very large volumes suggested by some stakeholders are out of reach of the market in 2016, given the various constraints. Even if the number of stations offering E85 continues to grow and the price of E85 continues to fall relative to E10, it is highly unlikely that E85 volumes in 2016 can exceed several hundred million gallons. For the purposes of estimating total ethanol supply, we have estimated that total E85 supply in 2016 will reach 200 million gallons, based on an estimate of growth in the number of E85 stations to about 3,200 and an E85 price discount of 22% relative to E10.
Based on these estimates of E0, E15, and E85 supply, we have determined that 139.33 billion gallons of E10 would be supplied in order to ensure that the full gasoline pool provides the 16.85 Quadrillion Btu that EIA has projected will be in demand in 2016. The
We recognize that the market may not necessarily respond to the final volume requirements for 2016 to produce the volumes of E0, E10, E15 and E85 noted in Table II.E.2.vi-1. However, we believe these volumes are reasonable estimates for use in deriving the final total renewable fuel volume requirement for 2016.
While the market constraints on ethanol supply are readily identifiable as being primarily in the areas of refueling infrastructure and ethanol consumption, it is more difficult to identify and assess the market components that limit potential growth in the use of biodiesel in 2016. Nevertheless, a review of the historical supply volumes of biodiesel and renewable diesel, particularly in 2013, indicates that the growth in supply of these fuels for use in transportation fuel in the United States has constraints.
In 2013 there were two very strong incentives for the increased production, import, and use of biodiesel and renewable diesel in the United States. For the first time in the history of the RFS program, the total renewable fuel standard could not be satisfied by using the minimum amount of biodiesel and renewable diesel required by the BBD volume requirement and blending ethanol as E10. Due to the challenges associated with expanding ethanol consumption through increased sales volumes of E15 and E85 mentioned above, there was a strong demand for non-ethanol fuels. RIN prices for all types of RINs rose as obligated parties sought to meet their RFS obligations. In addition to the incentives provided by the RFS requirements and resulting high RIN prices, the biodiesel blender's tax credit was in place throughout 2013, providing a strong economic incentive for biodiesel growth. With these strong incentives in place, the supply of biodiesel and renewable diesel used in transportation fuel in the United States increased significantly in 2013 (see Figure II.E.3-1 below).
Despite these large increases in the supply of biodiesel and renewable diesel, the number of RINs available to meet the obligated parties' renewable volume obligations fell short of the required volume by about 820 million RINs. This provides a strong indication that the biodiesel and renewable diesel supply in 2013 was limited; if this were not so then we would have expected that the strong demand for RINs in 2013 combined with the availability of the
Biodiesel and renewable diesel are produced from biogenic oils, fats, and greases. These can be oils, fats, and greases that are produced as by-products and collected from other industries, oils, fats, and greases recovered from waste streams, or virgin vegetable oils. Increasing the feedstock available for biodiesel and renewable diesel can be done both by diverting feedstocks from other existing uses, increasing the recovery rate of potential feedstocks from waste streams, or increasing the global supply of vegetable oils through greater oil crop cultivation and yields.
Several stakeholders claimed that the level of biodiesel feedstock supply that could be available in 2016 combined with the biodiesel and renewable diesel production capacity that already exists warrant an increase in the required volumes of advanced biofuel and total renewable fuel compared to those we proposed in the NPRM. For instance, the National Biodiesel Board (NBB), in support of their claim that up to 3.4 billion gallons of biodiesel could be available in 2016, submitted a study by LMC International entitled “
The LMC International study did not specifically provide estimates of feedstock available for use in the U.S. in 2016, making it difficult to determine how the study might affect our determination of applicable volume requirements for 2016. Moreover, we believe the LMC International study contains an erroneous assumption which contributes to an overestimation of feedstock availability. When estimating availability the study considers the maximum theoretical amount of oil that could be extracted from an oilseed, or “oil in seed”, versus the amount of oil that is actually expected to be extracted/produced. In reality some amount of the soybean supply is not crushed to produce oil but instead is fed directly to livestock, while in other instances the soybean is crushed and oil is extracted but the oil is added to feed and thus does not enter the oil market. Adding additional soy bean crushing capacity is possible, but would require a strong market signal and take time to construct and bring online. It is unlikely that significant new soy bean oil crushing capacity could be brought online in time to impact the feedstock available for biodiesel and renewable diesel production in 2016. These assumptions result in oil supply estimates that are in some cases significantly higher than USDA estimates. For example, LMC International's estimates of U.S. soybean oil production is more than 80 percent greater than that reported by USDA-WASDE for recent years.
The LCM International study also did not attempt to project the quantity of feedstock that would actually be available for biodiesel and renewable diesel production in light of the demand for these feedstocks from other industries. Currently there is significant competing demand for the feedstocks that can be used to produce biodiesel and renewable diesel from the food, livestock feed and oleochemical industries. Existing feedstock supplies are typically already under contract and/or already set up for certain distribution pathways to end use. These can and do change over time, but they cannot reasonably be expected to do so immediately. Furthermore, even when feedstocks are moved into biodiesel and renewable diesel production, it often means a shifting around of feedstocks, rather than an overall growth in total feedstock production. The existing competing demand for these feedstocks does not go away. If, for example, soy oil feedstocks are drawn away from food use to biodiesel use in response to the recent FDA regulations (as discussed below), it may result in other oil that was being used to produce biodiesel, such as palm or canola oil, now shifting to food use.
Finally, the LMC study did not take into consideration the volumes of feedstocks already devoted to biodiesel and renewable diesel production in the U.S. and abroad. For perspective, according to Statista, 2014 production of biodiesel from the top 15 producing countries was 6.8 billion gallons.
The American Soybean Association similarly provided information on higher potential volumes of biodiesel feedstock in 2016. They pointed out that demand for U.S. soybean oil for food use began to decline following the U.S. Food and Drug Administration's (FDA) action in 2003 to require food manufacturers to include trans-fats on nutrition labels. They stated that the likely continued displacement of additional soy oil from food use would make additional soy oil available for biodiesel feedstock. We acknowledge the trend of declining soybean oil use in food, and believe it will continue as a result of a June 2015 FDA determination requiring the elimination by 2018 of all partially hydrogenated oil in food use. To the extent that soy oil is being phased down for food purposes, some supply of soy oil will likely become available for other uses, such as biodiesel production. However, the impact on biodiesel production volumes is not likely to be substantial, particularly for 2016, for two reasons. First, the FDA action will not be complete until 2018. Second, as mentioned above, the removal of some soy oil from food will likely be offset by an increase in the use of other oils in food, with a corresponding reduction in the availability of those other oils for use in making biodiesel. As a result
We also received comments challenging the availability of additional biodiesel feedstocks and thus the opportunity for increased BBD production. The International Council on Clean Transportation and the Union of Concerned Scientists submitted a study “Projections of U.S. Production of Biodiesel Feedstock” by Professor Brorsen at the University of Oklahoma. Professor Brorsen considered all the major sources of U.S. biodiesel feedstock and developed projections of their availability through 2019. The conclusion of the study is that the potential to expand biodiesel production from the feedstocks in the U.S. is quite limited without substantially increasing feedstock prices. The study estimated that the U.S. agricultural sector can increase production of fats/oils beyond 2014 levels by 30 million gallons in 2015, 29 million gallons for 2016, and 25 million gallons in 2017. Thus, according to the study, higher volumes of biodiesel in 2016 beyond the approximately 30 million gallons from the U.S. agricultural sector would have to come from diverting existing feedstocks from current uses, increasing the supply of recovered waste feedstocks, or increasing imports of feedstock or finished biodiesel or renewable diesel, which the study did not address.
We acknowledge that the world supply of oils, fats, and greases that are suitable feedstocks for biodiesel and renewable diesel production has grown and can continue to grow over time. Nevertheless, diverting biodiesel and renewable diesel feedstocks from current uses and increasing total feedstock availability will take time. We believe that this supply can continue to grow as more oilseed crops are planted, productivity from existing crops increases, and recovery rates of waste, fats, oils, and greases adds to the total available supply. The recent development and commercialization of the non-food grade corn oil extracted from distillers dried grains at ethanol plants has also added to the total supply of biodiesel and renewable feedstocks. At the same time, all biodiesel feedstocks are not created equal. They have different markets and require different product handling and process steps, techniques, and conditions to maintain necessary product quality. As individual production facilities are designed to operate on the sources of feedstock available in their local area, growth in other types of feedstocks, even if they have access to it and have production capacity to handle it, does not necessarily allow them to simply increase production.
As the volume of feedstocks expands, the infrastructure for storing the feedstock and distributing it to biodiesel and renewable diesel production facilities will also need to expand. This will require changes to a number of industries depending on the feedstock, potentially including rail cars, barges, trucks, and oil storage facilities. If supply of biodiesel and renewable diesel feedstocks are being sourced internationally, it would also involve expansion of import and export facilities.
It is also worth highlighting that over time the opportunity for continued growth in the feedstocks currently used to produce biodiesel and renewable diesel may begin to plateau, and the volumes of these fuels along with it unless there is a breakthrough in the development of new feedstocks. The bump up in supply brought about by large increases in palm oil production, corn oil extraction, and the increased recovery of waste fats, oils, and greases is limited, and may soon near its practical limit. There has been considerable research and development for many years in the potential for algal bio-oils and other new oilseed crops that could be grown on marginal lands that could serve as a feedstock for biodiesel and renewable diesel. However, the promise of large volumes of algal bio-oils and alternative oilseed crops remains in the future, well beyond the timeframe of the 2016 standards, and near term feedstock supply increases are likely to be incremental.
As highlighted in the NPRM, the total capacity of all registered biodiesel and renewable diesel production facilities in the United States currently exceeds 2.7 billion gallons. In addition to the domestic production capacity, there is also significant registered capacity overseas. Historically domestic biodiesel production rates have been well short of the production capacity, with facility utilization rates often less than 50%. The reason for this is that the capital cost associated with biodiesel production is a relatively small portion of the cost of biodiesel, allowing facilities to build excess capacity to allow for expansion later as the market develops and grows. The economies of scale associated with biodiesel facilities are also fairly low relative to other types of renewable fuel, allowing biodiesel production facilities operating at low utilization rates or very small biodiesel facilities to be economically viable by taking advantage of low priced local feedstock supplies.
The situation is quite different however, for renewable diesel, where the hydrotreating necessary to convert the oil into diesel fuel requires considerably more capital, economies of scale require facilities to be relatively large, and the size and complexity of the facilities require much more time for financing, design, construction, and commissioning. This helps explain why renewable diesel production facilities are far fewer in number, have much larger production capacities on average, and why the volume of renewable diesel production has grown more slowly.
NBB in their comments pointed to the currently existing and registered production capacity as evidence to support its projection of how much biodiesel and renewable diesel could be supplied in 2016. However, while there is certainly potential to increase utilization of the existing production facilities it is uncertain what steps would have to be taken to increase production rates at these facilities. There is therefore uncertainty associated with the ability for an appreciable number of registered biodiesel and renewable diesel production facilities to simultaneously increase production rates given the constraints raised elsewhere in this section. Furthermore, different facilities are designed to handle different feedstocks (
Another important market component in assessing biodiesel and renewable diesel supply is the potential for imported volumes and the diversion of biodiesel and renewable diesel exports to domestic uses. In addition to the approximately 500 million gallons imported into the U.S. in 2014, there
Nevertheless, as evidenced in 2015 we have clearly been experiencing some upward growth in imports of biodiesel and renewable diesel. Much of the increase in biodiesel imports in 2015 has been from grandfathered facilities that are exempt from the 20% lifecycle GHG reduction requirement. Fuel from these facilities qualifies for D6 RINs that can be used to satisfy the total renewable fuel standard.
In order for foreign biodiesel and renewable diesel producer to increase their imports into the U.S., they will need to either increase their total production (which may require building new production capacity), or divert exports from domestic use and/or other foreign markets currently relying on these volumes to meet their own requirements. If the former, it may require the expansion of foreign distribution and export capacity which will take some time to put in place. If the latter, it will require a number of changes, including:
• A clear economic advantage (
• Time to renegotiate existing contracts and commitments,
• Certainty that economic and political conditions won't change that ultimately undermine such a decision,
• Time to expand available U.S. import terminal facilities, including not only tankage, loading, and offloading infrastructure, but also the rail and truck fleet necessary to transport the fuel from the import terminal to new markets.
To demonstrate the uncertainty associated with increasing biodiesel and renewable imports it is instructive to consider the case of imports from Argentina in recent years. Several stakeholders expressed concern that Argentina would significantly increase exports of biodiesel to the U.S. in 2016, and that this potential for increased imports must be accounted for in the determination of the applicable 2016
Additionally, the annualized volume of imported Argentinean biodiesel for 2015, based on data collected through July, is 94 million gallons. This level is far less that the potential volumes projected by the National Biodiesel Board and several others. Brazil has also just recently proposed increasing its biodiesel mandate from 7% to 8% in 2016, which may provide another attractive destination for exports of Argentinean biodiesel.
While biodiesel and renewable diesel are similar in that they are both diesel fuel replacements produced from the same types of feedstocks, there are significant differences in their fuel properties that result in differences in the way the two fuels are distributed and consumed. Biodiesel is an oxygenated fuel rather than a pure hydrocarbon. It cannot currently be distributed through most pipelines due to contamination concerns with jet fuel, and often requires specialized storage facilities to prevent the fuel from gelling in cold temperatures. A number of studies have investigated the impacts of cold temperatures on storage, blending, distribution, and use of biodiesel, along with potential mitigation strategies.
Comments we received from stakeholders on biodiesel supply challenges related to biodiesel distribution, storage, or use due to cold temperatures reveal differing opinions on the degree to which this may be a constraint on the growth of biodiesel and renewable diesel. The National Biodiesel Board stated that there are no constraints related to the distribution of biodiesel and renewable diesel because options such as heated storage tanks and the use of biodiesel produced from feedstocks with better cold temperature properties are available to address the issue. They pointed specifically to some states which require the use of biodiesel year-round. Others, such as CountryMark, indicated that they or their members stop blending biodiesel in the winter months. These comments suggest that the constraints on biodiesel supply due to cold temperatures may not be as pronounced as suggested in the NPRM, but that they continue to exist. Furthermore, the existence of methods for addressing potential challenges related to the cold temperature issues associated with biodiesel does not mean that these solutions can be employed nationwide in 2016. Since the market will determine the specific types and amounts of renewable fuels to use to meet the applicable volume requirements, investments and actions needed to address cold weather issues will certainly be a consideration for some parties, and their hesitancy to blend biodiesel in winter months may constrain the total supply of biodiesel in 2016.
Another factor potentially constraining the supply of biodiesel is the number of terminals and bulk plants that currently distribute biodiesel. At present there are about 600 distribution facilities reported as selling biodiesel either in pure form or blended form.
Transportation of biodiesel to and from the terminals and bulk plants is also an important consideration. There are two aspects to the distribution infrastructure of importance here; the distribution of biodiesel in pure/near pure form from biodiesel production or import facilities to terminals and bulk plants, and the distribution from the terminals/bulk plants in blended form to retail stations. As mentioned above, the unique properties of biodiesel have precluded blends from being transported in common carrier pipelines either in pure form (B100) or in blended form (such as B5 or B20). NBB has been working with the pipeline industry for many years in an effort to enable biodiesel blends to be transported by pipeline, as the ability to transport biodiesel by pipeline would quickly open new markets in farther ranging locations. In 2013 a major pipeline approved the transport of low level biodiesel blends (B5) in limited pipeline segments that do not carry jet fuel.
In lieu of pipeline transport, biodiesel currently relies primarily on rail car, barge, and especially tanker truck fleets for distribution from production and import facilities to blending terminals and bulk plants. Due to the unique properties of biodiesel, such transport typically has required the use of heated/insulated tanks, especially in winter to keep the product from gelling or freezing. This requirement for specialized equipment increases the cost of biodiesel distribution and further limits the speed at which biodiesel distribution can grow. Increasing biodiesel distribution capacity is not simply a matter of shifting barge/rail/truck infrastructure from other
The net result is that the expansion of terminals and bulk plants selling biodiesel and biodiesel blends, and the distribution infrastructure necessary to transport biodiesel to and from these facilities, is a significant challenge facing the rapid expansion of biodiesel. This is an area in which the biodiesel industry has made steady progress over time, and we anticipate that this steady progress can and will continue into the future, particularly with the ongoing incentive for biodiesel growth provided by the RFS standards. As with many of these potential supply constraints, however, increasing the biodiesel distribution capacity will require time, limiting the potential growth in 2016.
For renewable diesel, we do not expect that refueling infrastructure (
EPA is currently unaware of reliable data on the number of retail stations that offer biodiesel blends nationwide. The Web site Biodiesel.org shows the names and locations of 1090 stations that currently offer biodiesel blends.
There is some indication that the number of refueling stations willing or able to market biodiesel may become a factor that constrains the growth of biodiesel supply in the United States, either in 2016 or in future years. A number of retail locations that market diesel fuel are only offering biodiesel blends that exceed 5% (B5), which is the maximum amount of biodiesel for which many diesel vehicles are warranted. For example, the LOVES truck stop chain is a major retailers of biodiesel. A recent review of their Web site indicated that 221 of their 354 stations were selling B15.
Virtually all diesel vehicles and engines now in the in-use fleet have now been warranted for the use of B5 blends. In fact both FTC and ASTM specification for diesel fuel (16 CFR part 306 and ASTM D975 respectively) allows for biodiesel concentrations of up to five volume percent (B5) to be sold as diesel fuel, with no separate labeling required at the pump. Biodiesel blends of up to 5% are therefore indistinguishable in this regard. In addition, NBB claims that nearly all manufacturers now warrant at least one of their current offerings for use with B20 blends. This is a significant factor in assessing the potential supply of biodiesel to vehicles in future years and has been a main focus of NBB's technical and outreach efforts for many years, and one of their true success stories. Using biodiesel blends above B5 in diesel engines may require changes in design, calibration, and/or maintenance practices.
Even in instances where manufacturers warrant their engines to operate on B20 blends, they may have additional requirements to ensure the
Given the long life of diesel engines and the number of new engines not warranted for biodiesel blends above B5, turning over a significant portion of the fleet to engines designed and warranted for B20 is still many years off into the future. This means that in the near term the opportunity to sell B20 exclusively to vehicles warranted to run on these blends will likely be limited to centrally fueled fleets.
We received a number of comments on the NPRM related to the degree to which engine warranties may constrain biodiesel use in 2016; however no stakeholder provided any analyses demonstrating the fraction of in-use engines which are warranted for more than B5.
“. . . the transportation fleet and heating oil equipment pools still contain significant percentages that are not warranted or deemed compatible with levels of biodiesel above 5%.”
The National Biodiesel Board argued that regardless of whether manufacturers place limits on the use of biodiesel blends as a condition of honoring their engine warranties, many of these diesel engines can still safely use higher biodiesel blends than those cited in those warranties. Thus, said NBB, “. . . the formally OEM recommended biodiesel level should not be construed or used as any sort of limitation for biodiesel volumes.” We disagree, and believe that the OEM recommended biodiesel levels can have a significant impact on owner's willingness to use biodiesel blends. Despite anecdotal evidence regarding behavior of some diesel vehicle operators, it would be inappropriate for EPA to assume that diesel truck owners in general will knowingly use biodiesel blends at concentrations that exceed the limits cited in their engine warranties. It would be more prudent for EPA to assume that engine manufacturers are in the best position to judge which biodiesel blends are appropriate for use in their engines, and that engine owners will view their engine warranties in the same way. Evidence that some truck owners ignore the recommended limits on biodiesel concentrations when refueling their truck is not, we believe, a reasonable basis for assuming that engine warranties place no constraints on the use of higher biodiesel blends for the in-use truck fleet as a whole. Similarly, we do not believe that older engines with expired warranties can be assumed to have no constraints on biodiesel concentrations. Not only were older engines more likely to have been designed to operate on B5 or lower, but engine warranties continue to provide indications to truck owners of acceptable biodiesel concentrations even after they expire. Owner's manuals for those engines may also cite limits on biodiesel concentrations, and owner's manuals do not expire.
Consumer response to the availability of renewable diesel and low level biodiesel blends (B5 or less) has been generally positive, and this does not appear to be a significant impediment to growth in biodiesel and renewable diesel use. Because of its similarity to petroleum diesel, consumers who purchase renewable diesel are unlikely to notice any difference between renewable diesel and petroleum derived diesel fuel. Similarly, biodiesel blends up to B5 are unlikely to be noticed by consumers, especially since, as mentioned above, they may be sold without specific labeling. Consumer
Due to the large number of market segments where actions and investments may be needed to support the continued growth of biodiesel blends, it is difficult to isolate the specific constraint or group of constraints that will be the limiting factor or factors to the supply of biodiesel and renewable diesel in the United States in 2016. Not only are many of the potential constraints inter-related, but they are likely to vary over time. The challenges in identifying a single factor limiting the growth in the supply of biodiesel and renewable diesel in 2016 does not mean, however, that there are no constraints to the growth in supply.
A logical starting point in developing a projection of the available supply of biodiesel and renewable diesel in 2016 is a review of the volumes of these fuels supplied in previous years. In examining the data, both the absolute volumes of the supply of biodiesel and renewable diesel in previous years, as well as the rates of growth between years are relevant considerations. The volumes of biodiesel and renewable diesel (including both D4 and D6 biodiesel and renewable diesel) supplied each year from 2011 through 2015 are shown below.
One way to use the historical data to project the available supply of biodiesel and renewable diesel in 2016 would be to start with the volume expected to be supplied in 2015 (1.84 billion gallons), the most recent year for which actual supply data are available and also the year with the largest supply of biodiesel and renewable diesel, and then assess how much the supply can be expected to increase in 2016 in light of the constraints discussed above. We could assume, for example, that past growth in the year or years leading up to 2015 reflects the rate at which biodiesel and renewable diesel constraints can reasonably be expected to be addressed and alleviated in the future. If this were the case, we could use either the largest observed annual supply increase (689 million gallons from 2012 to 2013) or the average supply increase (212 million gallons from 2011 to 2015) to calculate how much biodiesel and renewable diesel volumes could increase over 2015 levels in 2016. This would result in a projected supply of 2.53 billion gallons of biodiesel and renewable diesel if we used the highest observed annual growth rate, or 2.06 billion gallons of biodiesel and renewable diesel in 2016 if we used the average annual growth rate.
We recognize that the highest annual growth rate achieved in the past (or the average annual growth rate in the past) does not necessarily indicate the growth rate that can be achieved in the future. In the past biodiesel was available in fewer markets, allowing new investments to be targeted to have a maximum impact on volume. However, as the market becomes more saturated and biodiesel becomes available in an increasing number of markets, additional investments may tend to have less of an impact on volume, limiting the potential large increases in supply year over year. Much of the growth in biodiesel and renewable diesel supply in the past was enabled by addressing the existing constraints in ways that required relatively less investment than the challenges currently facing the market. In 2013 additional feedstock was available to be recovered from waste streams and there was still significant opportunity to distribute additional biodiesel blends containing 5% biodiesel or less. Future supply increases will likely require diverting potential biodiesel and renewable diesel feedstocks from
We received many comments on our NPRM that offered projections of the available biodiesel and renewable diesel supply in 2016. It was not always clear from reading the comments if the volume projections they offered represent their projection of the total supply of biodiesel and renewable diesel, as is relevant for determining the total renewable fuel supply in 2016, or if they represent a sub-set of the total biodiesel and renewable diesel availability (such as only BBD and not conventional biodiesel, only biodiesel and not renewable diesel, or the level at which they requested the BBD standard be set). Nevertheless, we have reviewed these comments and considered the volume projections offered and the supporting data provided in determining the supply of biodiesel and renewable diesel in the United States in 2016.
The National Biodiesel Board suggested that the volume of advanced biodiesel supplied to help meet the advanced biofuel volume requirement should be at least 2.7 billion gallons in 2016, based on the highest rate of D4 RIN generation achieved in a single month. They effectively assumed that the rate of RIN generation that occurred in December 2013 (220 million gallons) could be duplicated over a 12-month period, and that all of this product could be distributed and used in the United States in 2016. They stated that an additional 370-720 million gallons of biodiesel (550-1,080 million RINs) could be supplied from imported biodiesel. We disagree that these volumes can be supplied in 2016. We believe that using the highest production in a single month from the historical record is not a reasonable basis for projecting possible future supply over the course of an entire year for a number of reasons. Such an approach does not take into account the factors, described below, that allowed for that maximum single month production, including the expiring blenders tax credit and the inability to sustain that production level year-round. In addition, production inventories can be grown over a one-month time period in a manner that masks constraints in the fuel delivery infrastructure. As evidence, we note that the highest D4 RIN generation level in a single month (220 million gallons in December 2013) occurred immediately before one of the lowest monthly D4 RIN generation level that has occurred in the last several years (88 million gallons in January 2014). The average of those two months is the equivalent of about 1.85 billion gallons over the course of a year.
Moreover, the highest monthly D4 RIN generation level cited by the National Biodiesel Board included imports which have been highly variable and cannot be projected with reasonable certainty based on historical supply. The fact that the month used by NBB to project that 2.7 billion gallons of BBD could be supplied already includes a significant amount of imported volumes makes their estimate of additional imports particularly uncertain. The portion of the 1.85 billion gallon annual average RIN generation rate derived from annualizing December 2013 and January 2014 volumes that can be attributed to domestic production is 1.43 billion gallons, and even this number should be considered high because it does not account for exports of biodiesel and RINs retired because they were invalid or were otherwise not available for compliance. As a result of these factors, the actual demonstrated domestic supply (domestic production plus imports, less exports and corrections) of biodiesel and renewable diesel does not support an available supply of 3.1-3.4 billion gallons per year, as suggested by NBB.
In addition to the comments from NBB, we also received a number of other comments suggesting a higher supply of biodiesel may be available in 2016 than in previous years. Many commenters, such as the American Council on Renewable Energy, the American Soybean Association, the National Renders Association, John Deere, several state soybean associations, and others suggested that the BBD standard should require the use of at least 2 billion gallons in 2016. Other commenters, including Archer Daniels Midland, the California Biodiesel Alliance, Imperium Renewables, and others suggested that the BBD standard should require the use of 2.4 billion gallons in 2016. Since they were focused on the BBD standard, these numbers do not necessarily represent the commenters' views of the available supply of biodiesel and renewable diesel in 2016, but we believe they give a good indication of their views on the available supply. We also note that they are much more in line with the available supply volumes that we estimate below based on an extrapolation of growth rates from previous years.
Given the widely divergent comments and available data on the potential supply of biodiesel feedstocks, it is clear that there is a great deal of uncertainty in the degree to which those feedstock supplies can grow in 2016. A focus on potentially available feedstock supplies is insufficient as this is not the only factor to consider in assessing the potential volumes of biodiesel and renewable diesel in 2016. Neither biodiesel production capacity, nor the supply of oils, fats, and greases around the world, has ever been the sole constraint on biodiesel and renewable diesel supply to the U.S. Indeed, as discussed above, there are a number of constraints, ranging from competing demand for biodiesel and renewable diesel feedstocks to biodiesel and renewable diesel distribution infrastructure and engine compatibility, that we believe will constrain the supply of biodiesel and renewable diesel supply in 2016.
These constraints do not represent insurmountable barriers, but they do take time to overcome. The market has been making efforts to overcome these constraints in recent years as demonstrated by the fact that biodiesel and renewable diesel consumption in the U.S. has been steadily increasing. We agree with the biofuels industry that more opportunity for ongoing growth still exists, but we do believe that the constraints listed above will continue to be a factor in the rate of growth for 2016, but we also believe that existing biodiesel and renewable diesel production capacity should not be the basis for projecting achievable volumes
This volume of biodiesel and renewable diesel is approximately equal to the projected volume using the highest observed annual growth rate (2.53 billion gallons), and far higher than the projected volume using the average growth rate between 2011 and 2015 (2.06 billion gallons). We believe this is appropriate considering both the demonstrated ability of the market to respond to incentives for increased production, import, and use of biodiesel and renewable diesel, as demonstrated in 2013, and also the potential constraints to the continued growth of biodiesel and renewable diesel discussed above. These constraints, particularly the availability of qualifying feedstocks to processing facilities that can utilize them in light of competing demand for these feedstocks and the distribution infrastructure needed to increase the use of biodiesel and renewable diesel, may be more challenging to overcome in the future, but we believe growth in 2016 can still approach the record growth experienced in 2013. In 2013 increasing available supplies of feedstock, through means such as greater corn oil production rates at ethanol plants and increased recovery of waste fats and oils, and increasing biodiesel and renewable diesel distribution by adding biodiesel blending capacity at terminals and/or bulk plants in areas with large local demand for diesel fuel, were both relatively simple. For 2016 the RFS standard will necessitate similar and potentially even larger investments and actions to grow biodiesel and renewable diesel supply.
We recognize that the market may not necessarily respond to the final total renewable standard by supplying exactly 2.5 billion gallons of biodiesel and renewable diesel to the transportation fuels market in the United States, but may instead supply a slightly lower or higher volume of biodiesel and renewable diesel with corresponding changes in the supply of other types of renewable fuel. As a result, we believe there is less uncertainty with respect to achievability of the total volume requirement than there is concerning the projected 2.5 billion gallons of biodiesel and renewable diesel that we have used in deriving the final total renewable fuel volume requirement.
The RINs available for meeting the total renewable fuel standard include not only ethanol, biodiesel, and renewable diesel, but also RINs generated for a number of other renewable fuels. While the potential for each of these fuels is small relative to those covered above, the volumes must still be considered in assessing the total supply of renewable fuel in 2016. One such fuel is CNG/LNG derived from biogas when used as a transportation fuel. The potential for this fuel in 2016 is approximately 210 million gallons. This projection is discussed in more detail in Section IV, as this fuel generally qualifies as a cellulosic biofuel.
There also are some opportunities for moderate growth through the end of 2016 in a variety of other fuel types. Currently, the RFS regulations provide a RIN generating pathway for heating oil, naphtha, jet fuel, LPG, liquefied natural gas, renewable gasoline, butanol, and electricity. To date only heating oil, naphtha, and butanol have been produced to generate RINs, reaching a projected annual high of 23 mill gal based on data through September, 2015. Since these sources have not grown significantly over the last several years, we believe that the supply of other non-ethanol renewable fuels can reach about 25 million gallons in 2016.
The total volume of renewable fuel that can be supplied in 2016 is the combination of the estimated supply of each of the biofuel types described above: ethanol, biodiesel and renewable diesel, and other biofuels such as biogas, naphtha, and heating oil. Most of these biofuel types can be produced as either advanced biofuel or as conventional (D6) renewable fuel, depending on the feedstock and production process used. Our estimate of the supply of total renewable fuel shown in the table below includes contributions from both advanced biofuels and conventional renewable fuels.
Based on this analysis, we are establishing a total renewable fuel volume requirement of 18.11 billion gallons for 2016. However, we note that the contributions from individual sources that are shown in Table II.E.5-1 were developed only for the purpose of determining a final volume requirement for 2016; they do not represent EPA's projection of precisely how the market will respond to the standards we set. We continue to believe, as we noted in the NPRM, that any estimate we make regarding particular fuel types is uncertain, but that overall the final volume requirement is attainable. The contributions from individual sources that we have used are illustrative of one way in which the volume requirement for total renewable fuel could be met. Actual market responses could vary widely, as described more fully in Section II.G.
The volumes of total renewable fuel that we are establishing for 2016 reflect our assessment of the maximum volumes that can reasonably be achieved, taking into account both the constraints on supply discussed previously and our judgment regarding the ability of the standards we set to result in marketplace changes in 2016.
As described in Section II.B above, we are reducing volumes of total renewable fuel under both the cellulosic and the general waiver authority, and we are reducing volumes of advanced biofuel under the cellulosic waiver authority only. As noted in Section II.B, EPA has broad discretion in utilizing the cellulosic waiver authority, since Congress did not specify the circumstances under which it may or should be utilized nor the factors to consider in determining appropriate volume reductions. We are cognizant of the fact that increases in the statutory volume targets after 2015 are only in advanced biofuel, and that advanced biofuel provides relatively large GHG reductions in comparison to conventional renewable fuel. In light of these facts, our intention in utilizing the cellulosic waiver authority for 2016 is to place an emphasis on setting the 2016 advanced biofuel volume requirement at a level that is reasonably attainable taking into account uncertainties related to such factors as production, import, distribution and consumption constraints associated with these fuels.
As described earlier, we are establishing a total renewable fuel volume requirement of 18.11 billion gallons for 2016. Our assessment of total renewable fuel is based on an estimate of 14.13 billion gallons of ethanol and 2.50 billion gallons of biodiesel and renewable diesel, in addition to smaller volumes of biogas and other types of renewable fuel.
With regard to ethanol, the primary source of advanced biofuel is imported sugarcane ethanol.
The Brazilian Sugarcane Industry Association (UNICA) provided comments suggesting that 2 billion gallons of sugarcane ethanol could be supplied to the U.S. in 2016. After further investigation, we do not believe that this level of import is reasonably achievable in 2016. To begin with, exports of 2 billion gallons from Brazil to the U.S. would be significantly higher than total exports to all countries in all previous years, as shown below.
In recent years, ethanol exports from Brazil to countries other than the U.S. averaged more than 300 million gallons each year. Brazil has recently increased ethanol exports to China and has also increased its own ethanol use requirements.
Although UNICA cites a variety of factors that can affect ethanol exports and which are beyond the control of Brazilian mills and the EPA, it nevertheless based its estimate of potential exports to the U.S. solely on a combination of Brazilian ethanol production capacity and opportunities created by the RFS program itself. We believe that UNICA has underestimated the uncertainty associated with other market factors, including the E10 blendwall in the U.S., changes in domestic demand for ethanol in Brazil, and competing world demand for sugar. With regard to sugar, it is true that Brazilian production has been declining for the last several years. However, between 2005 and 2015, Brazilian production of sugar has increased just as often as it has decreased, demonstrating that there is uncertainty with regard to worldwide demand for sugar. We
More importantly, while production of sugarcane has increased moderately in Brazil over the last several years, total gasoline consumption in Brazil also continues to climb.
Several stakeholders also pointed to the potential for so-called “circle trade” between the U.S. and Brazil as a reason to either reduce the applicable volume requirement for advanced biofuel in such a way as to limit imports of sugarcane ethanol, and/or to increase the required volume of BBD. In this circle trade, corn-based ethanol is exported from the U.S. to Brazil at the same time that sugarcane ethanol is exported from Brazil to the U.S. This has undoubtedly occurred in the past, though the circle trade volumes have represented only 21% of all ethanol imports and exports between the two countries that occurred between 2010 and 2014.
As stated in the NPRM, the highest volume of Brazilian sugarcane ethanol that has ever been imported was 680 million gallons in 2006; in 2013 imports reached 435 million gallons.
With regard to advanced biodiesel and renewable diesel, past experience suggests that a high percentage of the supply of biodiesel and renewable diesel to the United States qualifies as advanced biofuel. In previous years biodiesel and renewable diesel produced in the United States has been almost exclusively advanced biofuel. It is also likely that some advanced biodiesel will be imported in 2016, as discussed in Section II.E.3.iii, however we believe that the volume of biodiesel imported from Argentina in 2016 is likely to be less than the several hundred million gallons suggested by some commenters (see Section II.E.3.iii for more detail on biodiesel and renewable diesel imports). Imports of conventional (D6) biodiesel and renewable diesel, however, have also increased in recent years, and are likely to continue to contribute to the supply of renewable fuel in the United States in 2016. By including a high percentage of the 2.5 billion gallon projected total supply of biodiesel and renewable diesel in the advanced biofuel category, consistent with past experience, we are incentivizing increased production and import of biodiesel and renewable diesel that is produced from feedstocks that qualify for advanced biofuel RINs in 2016, rather than conventional renewable fuel RINs, enhancing the GHG benefits of the RFS program.
The discussion of the many constraints on total biodiesel supply in Section II.E.3 above is also relevant in the determination of reasonably attainable volumes of advanced biodiesel. In this context, we believe that out of the total of 2.5 billion gallons of biodiesel and renewable diesel that we have determined can reasonably be assumed for purposes of establishing the total renewable fuel volume requirement, that 2.1 billion gallons could be advanced biofuel. While we expect domestically produced biodiesel and renewable diesel to remain the primary source of biodiesel and renewable diesel supplied to the United States in 2016, the potential constraints related to the distribution and use of biodiesel, discussed in Section II.E.3 above, may lead to an increasing demand for renewable diesel, which faces fewer potential constraints related to distribution and use than biodiesel. Much of the renewable diesel produced globally would qualify as conventional, rather than advanced biofuel, and we therefore expect that conventional renewable diesel will continue to be an important source of renewable fuel used in the United States in 2016. The volume of advanced biodiesel and renewable diesel which we are assuming for purposes of deriving the advanced biofuel standard for 2016 (2.1 billion gallons) would represent an increase of about 370 million gallons from that supplied in 2015, which is greater than the annual increase that occurred in the previous two years (91 million gallons from 2013 to 2014 and 104 million gallons from 2014 to 2015)
Due to the nested nature of the standards, all cellulosic biofuel qualifies to help meet the advanced biofuel volume requirement. As described in Section II.E.4, we have also estimated that about 25 million gallons of advanced biofuel other than ethanol, biodiesel, and renewable diesel can be supplied in 2016. We estimate that the combination of all these sources results in a reasonably attainable volume of advanced biofuel for 2016 of 3.61 billion gallons. This is the volume requirement that we are establishing for advanced biofuel for 2016. We note that the volumes actually used to satisfy this requirement may be different than those listed in Table II.F-1 below.
The volume of advanced biofuel that we are establishing for 2016 will require increases from current levels that are substantial yet attainable, taking into account the constraints on supply discussed previously, our judgment regarding the ability of the standards we set to result in marketplace changes, and the various uncertainties we have described. Figure II.F-3 shows that the advanced biofuel volume requirement for 2016 will be significantly higher than the actual supply of advanced biofuel in previous years.
The transportation fuel market is dynamic and complex, and the RFS program is only one of many factors that determine the relative types and amounts of renewable fuel that will be used. Thus, while we set the applicable volume requirements for advanced biofuel and total renewable fuel, we cannot precisely predict how the market will choose to meet those requirements, as the RFS standards we set generally allow use of multiple fuel types for compliance. We can, however, delineate a range of possibilities, and doing so provides a means of demonstrating that the final volume requirements are attainable through multiple possible paths.
For our final 2016 total renewable fuel volume requirement of 18.11 billion gallons, there would be 1.05 billion ethanol-equivalent gallons needed beyond that supplied by E10, the BBD volume requirement of 1.9 billion physical gallons (equivalent to 2.85 billion D4 RINs as described in Section III.D.4), and that portion of the cellulosic biofuel volume which we would expect to be derived from non-ethanol biofuel (see Section IV.F).
To illustrate the possible outcomes, we evaluated a number of scenarios with varying levels of E85/E15, E0, imported sugarcane ethanol, advanced biodiesel and renewable diesel, and conventional biodiesel and renewable diesel (likely to be made from palm oil). In doing so we sought to capture the range of possibilities for each individual source, based both on levels achieved in the past and how the market might respond to the final standards in 2016. Each of the rows in Table II.G-2 represent a scenario in which the final total renewable fuel and advanced biofuel volume requirements would be satisfied. While we cannot predict precisely how the market will respond to the standards we are setting, we believe that the market will respond, and will likely do so within the range of options shown in the table below. The flexibility afforded the market through the RFS program helps to make the standards we are finalizing today reasonably achievable.
The scenarios in the table above are not the only ways that the market could choose to meet the total renewable fuel and advanced biofuel volume requirements that we are finalizing today. Indeed, other combinations are possible, with volumes higher than the highest levels we have shown above or, in some cases, lower than the lowest levels we have shown. The scenarios above (and similar scenarios presented in the NPRM) cannot be treated as EPA's views on the only, or even most likely, ways that the market may respond to the final volume requirements for 2016, contrary to the views of some stakeholders who commented on the NPRM. Instead, the scenarios are merely
Stakeholders who believed that the volume requirements we proposed in the NPRM were too high often described them as unprecedented or overly aggressive, implicitly treating the various legal and practical constraints to increased renewable fuel use as a barrier that cannot or should not be crossed. Some stakeholders said that any scenario in which a particular category of renewable fuel exceeded historical maximums or previously demonstrated production levels cannot be considered to be achievable. Based on this premise, such stakeholders dismissed all scenarios in the NPRM as being unachievable.
As described earlier, while we acknowledge that constraints on growth in renewable fuel supply are real, we do not believe that they create absolute barriers to growth in renewable fuel supply. Instead, the current constraints on growth in supply mean that each additional supply increment is likely to be more difficult to achieve than previous increments, and likely require more time to overcome than past constraints. The market most certainly can and will respond to the standards that we set by increasing supply, as has been demonstrated on other occasions. Growth in the biofuels market is also the primary objective of the statute, as we acknowledge throughout this action. However, the market is not unlimited in its ability to respond, and for this reason we have found it necessary to reduce the required volumes below the statutory targets.
The scenarios that we provided in the NPRM, and somewhat different scenarios presented above that reflect the final volume requirements, demonstrate that the market has various ways in which it could respond. The market can be expected to choose the lowest cost path to compliance for 2016, but some parties may choose paths that are intended to result in lower costs in the long term despite generating higher costs in the near term. For instance, regulated parties may respond to the standards we set with investments in production, distribution, and consumption infrastructure that is focused on longer term growth.
All of the volume levels in the scenarios shown above are within reach of a responsive market, though they may not all be equally likely. Below we discuss several of them to demonstrate that the final volume requirements for 2016 are achievable.
With regard to E85, according to EIA there will be about 16 million FFVs in the in-use fleet in 2016 with a total consumption capacity of about 14 billion gallons of E85.
As Table II.G-2 illustrates, the final standards could result in the consumption of as much as 2.5 billion gallons of biodiesel and renewable diesel, representing an increase of more than 600 million gallons over the projected 2015 supply of all D4 and D6 biodiesel and renewable diesel. While this would be a substantial increase, we believe that it is possible for the market to reach this level as discussed as in Section II.E.3. 2.5 billion gallons of biodiesel would represent about 4% of the nationwide pool of diesel fuel in 2016. Most diesel fuel could contain 5% biodiesel while still allowing some diesel fuel to contain no biodiesel to accommodate areas of the country where the distribution infrastructure is not yet established, as well as that used in northern states during the coldest months of the year. Also, B20 could be used in a number of centrally-fueled fleets composed of newer engines without violating manufacturer warranties, and additional volumes of biodiesel could be used in heating oil. In light of these additional volumes, it is possible that 2.5 billion gallons could be supplied in 2016.
We note that it would be inappropriate to construct a new scenario based on the highest volumes in each category that are shown in Table II.G-2 in order to argue for higher volume requirements than we are establishing today. Doing so would result in summing of values that we have determined are higher than the most likely maximum achievable volumes of the different fuel categories, resulting in a total volume that we believe would be extremely unlikely to be achievable. We have more confidence in the ability of the market to achieve 18.11 billion gallons of total renewable fuel through some combination of different types of renewable fuel than we have in the ability of the market to achieve a specific level of, say, biodiesel. Thus, for instance, while the highest biodiesel volume shown in Table II.G-2 is about 2.5 billion gallons, the market could choose a different level of total biodiesel and renewable diesel, offsetting the volumes with other fuels. The same is true for the highest level of E85 shown in Table II.G-2 of 400 million gallons, or the highest level of sugarcane ethanol of about 500 million gallons. In addition, the consumption of each fuel in Table II.G-2 is not independent of the consumption of the other fuels in the table. For example, greater domestic biodiesel production reduces the likelihood of large imports of biodiesel
As noted in the NPRM, the volume requirements that we are establishing today will likely result in RIN prices that are higher than historical levels. RIN price increases are an expected market response to a renewable fuel volume requirement that is higher than that in previous years and which is expected to require effort on the part of producers, distributors, blenders, and retailers to overcome constraints. While the RIN market mechanism provides incentives for the market to increase supply both in the near and long term, as stated earlier the RIN market mechanism is not without limitation, and the renewable fuel supply cannot be expected to increase proportionally at any RIN price. Particularly in the near term (specifically 2016), we do not believe that significantly higher RIN prices would likely compel the market to supply substantially higher volumes than we are finalizing today.
We explained in the NPRM that we cannot precisely assess the volume of carryover RINs available for use in complying with the 2014, 2015, and 2016 standards, but that we estimated that approximately 1.8 billion would remain after compliance with the 2013 RFS standards. We proposed that the current bank of carryover RINs should be preserved as a compliance “buffer” and not intentionally drawn down by setting volume requirements at a level that is higher than can be satisfied through the production and use of physical gallons of fuel.
Comments on this issue generally expressed two opposing points of view. Many commenters, including many obligated parties, contended that EPA should not assume a draw-down in the bank of carryover RINs in determining the appropriate level of volume requirements. On the other hand, other commenters including many renewable fuel providers urged EPA to rely on carryover RINs to push the standards higher than the levels of projected physical volumes and so minimize the extent to which statutory applicable volumes are reduced.
Representatives of obligated parties were nearly uniform in supporting EPA's proposal to not assume a draw-down in the current bank of carryover RINs in setting the 2014, 2015, and 2016 advanced biofuel and total renewable fuel standards. Virtually all of these commenters agreed that maintaining the bank of carryover RIN would provide them with needed compliance flexibility to address unforeseen events such as operational problems, market dislocations, supply limitations, or fraudulent RINs. Several commenters noted that if EPA were to rely on the use of carryover RINs to push for higher standards than reflected by actual renewable fuel supply, it would remove a flexibility that Congress had intended for obligated parties. Several commenters also noted that obligated parties vary in their ability to acquire RINs, with the result being that some obligated parties have a substantial number of carryover RINs, while others have few or none. They argued that setting the volume requirements with the expectation that all or a substantial number of carryover RINs would be used would make compliance even more difficult than it would otherwise be for those who must rely largely or totally on RIN purchases rather than on acquiring RINs through blending activities. Several commenters also argued that maintaining the bank of carryover RINs allows for better market trading liquidity and a cushion against future program uncertainty. They noted the importance of a relatively stable, liquid RIN market for achieving compliance with volume requirements, particularly where new and expanded avenues of supply are still being developed and built. In their view, carryover RINs have been important to maintaining a functioning market, and they cautioned EPA against reducing that pool at all or too much and thereby risking severe market disruption in the event of a drought or other unforeseen difficulties.
Commenters from the renewable fuel industry, on the other hand, urged EPA to assume a draw-down in the bank of carryover RINs in determining whether and to what extent to waive statutory volumes. They noted that EPA considered the availability of carryover RINs in previous decisions not to waive statutory volumes, and argued that EPA's proposed approach was inconsistent with this past practice. They pointed out that in order to comply with the statute's purpose to encourage growth in the use of renewable fuel in the transportation fuel supply, carryover RINs should be considered available for minimizing the extent to which statutory volume requirements are reduced. Some of these commenters further argued that the carryover RINs clearly are part of the renewable fuel “supply” available for compliance purposes, and therefore EPA must count them in determining whether there is an “inadequate domestic supply” for purposes of justifying use of the general waiver authority.
In the NPRM, EPA assessed the size of the RIN bank at approximately 1.8 billion carryover RINs. However, we have updated our assessment, and now believe that 1.74 billion is the maximum that might be available for possible use in complying with the standards for 2014, 2015 and 2016.
EPA has decided to maintain the proposed approach, and not set the volume requirements in the final rule with the intention or expectation of drawing down the current bank of carryover RINs. While we have not assumed an intentional drawdown in the overall bank of carryover RINs owned by obligated parties collectively in establishing the volume standards for 2014, 2015, and 2016, we understand that some obligated parties may choose to sell or use all or part of their individual banks of carryover RINs during this time period. To the extent that they do so, other obligated parties would be in a position to bank carryover RINs by using available renewable fuel or purchasing RINs representing such fuel, with the expected net result being no effective change in the size of the overall bank of carryover RINs that is owned collectively by obligated parties.
In finalizing this approach, we carefully considered the many comments received, including on the role of carryover RINs under our waiver authorities and the policy implications of our decision. Our responses to major comments are summarized here, with additional detailed responses in the Response to Comments document in the docket.
We agree with the many commenters who noted the importance of carryover RINs to individual compliance flexibility and operability of the program as whole. We believe that carryover RINs are extremely important in providing obligated parties compliance flexibility in the face of substantial uncertainties in the transportation fuel marketplace, and in providing a liquid and well-functioning RIN market upon which success of the entire program depends. As described in the 2007 rulemaking establishing the RFS regulatory program,
An adequate RIN bank also serves to make the RIN market liquid and to avoid the possible need for frequent standards adjustments. Just as the economy as a whole functions best when individuals and businesses prudently plan for unforeseen events by maintaining inventories and reserve money accounts, we believe that the RFS program will not function properly unless sufficient carryover RINs are held in reserve for potential use by the RIN holders themselves, or for possible sale to others that may not have established their own carryover RIN reserves. Were there to be no RINs in reserve, then even minor disruptions causing shortfalls in renewable fuel production or distribution, or higher than expected transportation fuel demand (requiring greater volumes of renewable fuel to comply with the percentage standards that apply to all volumes of transportation fuel, including the unexpected volumes) could lead to the need for a new waiver of the standards, undermining the market certainty so critical to the long term success of the RFS program. Furthermore, many obligated parties lack the ability to generate certain types of RINs. With a functioning liquid RIN market this is not a problem because we expect that these obligated parties will be able to comply by securing these RINs on the open market. However, a significant drawdown of the carryover RIN bank leading to a scarcity of RINs may stop the market from functioning in an efficient manner, even where the market overall could satisfy the standards. For all of these reasons, the collective carryover RIN bank provides a needed programmatic buffer that both facilitates individual compliance and provides for smooth overall functioning of the program. (Here and elsewhere we use the term “buffer” as shorthand reference to all of the benefits that are provided by a sufficient bank of carryover RINs.)
The importance of carryover RINs to the RFS program and to obligated parties can be illustrated by comparing them to either currency or inventory, as they can be seen as functioning in both roles in the RFS program. First, carryover RINs, like all RINs, are a form of “currency” that can be traded and that ultimately are used to settle compliance accounts at the close of each RFS compliance year. Individual banks of carryover RINs can be analogized to a typical individual bank account in which money is deposited and withdrawn. It is commonly understood that in managing both personal and business finances, that a reserve fund should be maintained to cover unforeseen circumstances. Thus, it is generally considered unwise to budget spending every dollar that is earned in a paycheck, since unforeseen events such as illness, injury, or a downturn in business could impact future earnings, and it is prudent to assume that such an event will occur in the future and to plan for them. This type of planning is particularly important in situations where credit is either unavailable or restricted, since in such circumstances there may be very limited alternatives to a reserve account. The RFS compliance system is structured to provide only limited “credit” for compliance obligations. Parties may defer compliance for one calendar year, but are required to pay back the deficit in the next compliance year while also meeting the next year's requirements.
We also believe the carryover RIN bank for the RFS program can be analogized to the working inventory that any business needs to operate. In the case of businesses, these are the raw materials, parts, or cash on hand needed to keep production going for the next day, the next week, or the next several months until new supplies can be delivered during normal operations and to allow for potential disruptions in supply of necessary materials. Failure to maintain an adequate working inventory of supplies could shut down operations, cause contracts to go unfulfilled, and create a lack of confidence in the business by would-be purchasers of their products that could ultimately lead to business failure. This is why successful businesses maintain inventories of supplies that they will need to maintain continuous production, and to account for unexpected disruptions in supply.
Some commenters disagreed with the proposed approach, suggesting that carryover RINs must be considered as part of “supply” in determining if there is an “inadequate domestic supply” justifying a waiver pursuant to CAA section 211(o)(7)(A). We disagree with these comments. As noted in Section II.B., the term “inadequate domestic supply” is not defined in the statute. Similarly, CAA section 211(o)(5), which provides the statutory basis for the carryover RIN regulatory provisions, requires that EPA establish a credit program as part of its RFS regulations, and that the credits be valid to show compliance for 12 months as of the date of generation, but is silent on the relationship of these credits to the “inadequate domestic supply” reference in section 211(o)(7)(A). Therefore, EPA finds no guidance in the text of these key statutory provisions on whether or not carryover RINs should be deemed part of the “supply” referenced in CAA section 211(o)(7)(A). In light of the statute's silence on this matter, it is appropriate for EPA to interpret the term so as to best fulfill the statute's objectives, including the general objective that the program runs efficiently.
We believe that the word “supply” in the phrase “inadequate domestic supply” can logically be read to refer only to actual renewable fuel (and not carryover RINs), since the focus of the entire RFS program is on increasing the amount of renewable fuel used in the transportation sector. Commenters suggested that the word “supply” could perhaps be interpreted to include both renewable fuel and carryover RINs on the grounds that all such RINs can be used for compliance purposes. However, it is clear that the result of this latter interpretation would be a complete drawdown in the collective bank of carryover RINs in a relatively short time period. In any year where actual renewable fuel supply was below the statutory levels and there was a balance of carryover RINs, reducing if not eliminating that balance would be a condition of exercising the general waiver authority. Because we firmly believe that maintaining a significant bank of carryover RINs provides a substantial benefit to the RFS program, as described above, in our judgment it best serves the interests of the program to interpret the term “supply” in the term “inadequate domestic supply” to include only actual renewable fuel, and not carryover RINs.
Although we do not believe that carryover RINs should be considered as part of the “supply” of renewable fuel in the context of a finding of “inadequate domestic supply” under the general waiver authority, we do believe that the availability of carryover RINs is an important factor for EPA to consider in determining whether or not to use the general waiver authority, just as it is when EPA considers using its cellulosic waiver authority (as upheld in the
We do not agree with those commenters who asserted that carryover RINs may never be a consideration in determining whether and by how much to reduce statutory volume requirements. In evaluating EPA's decision not to use the cellulosic waiver authority in 2013 to reduce advanced and total renewable fuel volumes, the D.C. Circuit in
Similarly, were EPA to receive a request to waive already-established standards during the compliance year, we believe that it would be appropriate for EPA to take into consideration the substantially different context involved. Although the situation is not presently before us, we believe that there could be a strong case for avoiding granting a waiver during the course of a compliance year if a waiver can be avoided through the use of carryover RINs. We would need to consider in that context whether it would be appropriate to revise an established standard in the midst of the compliance year if there is a compliance mechanism available to avert that result. Indeed, EPA believes that one benefit of preserving carryover RINs when setting standards in the first instance, is precisely so that they may be available to address unforeseen circumstances such as a downturn in wet gallon supply during the compliance year. EPA will evaluate all such actions on a case-by-case basis.
As discussed above, we believe that an appropriate bank of carryover RINs serves an important program function, but we also believe that in circumstances where there is an overabundance of carryover RINs, that EPA can and should consider their availability as a possible approach to avoid or minimize waivers of the statutory volume targets. In establishing the RFS regulatory program, we considered both the beneficial program impacts of carryover RINs (
For example, we estimated that 3.5 billion excess RINs were generated in 2011—almost 500 million more than the 3.02 billion carryover RINs that could be used in 2012 as a result of the 20 percent cap.
Some commenters felt that the availability of carryover RINs could result in obligated parties complying through retirement of carryover RINs rather than investing in infrastructure or other long-term efforts to increase biofuel supply. As noted above, we recognize the potential that too large a volume of carryover RINs could undermine the legitimate need of biofuel producers for assurance that the products they produce will actually be sold and used during a given compliance year, but we believe the current size of the carryover RIN bank is not sufficiently large to result in such problems. While we recognize that individual obligated parties may choose to comply in part through retiring carryover RINs (up to the 20 percent cap), we believe that, considering the importance of carryover RINs in providing compliance flexibility, obligated parties as a whole are unlikely to deplete the collective bank of carryover RINs simply to delay making investments in new infrastructure to increase the production and distribution of renewable fuel. Our thesis is supported by empirical evidence from 2013.
EPA acknowledged in setting the 2013 standards that 14.5 billion gallons of ethanol would be needed to meet the total statutory renewable fuel volume of 16.55 billion gallons, assuming that no biomass-based diesel was produced above the 1.28 billion gallons required by the biomass-based diesel standard. We also determined that that the total amount of ethanol the market could absorb as E10 in 2013 was 13.1 billion gallons, leaving a potential gap of 1.4 billion gallons. We then described how biomass-based diesel production in excess of the biomass-based diesel standard, increased production of other non-ethanol renewable fuels, and use of E85 could contribute to the needed gallons. We also pointed out that about 2.6 billion carryover RINs would be available in 2013, which was more than enough to cover the potential gap of 1.4 billion gallons if other approaches to compliance were not realized. We decided, therefore, that a waiver of the statutory applicable volume of total renewable fuel was not needed in 2013, since there were multiple approaches to compliance available in the marketplace. Following signature of the final rule, there was a dramatic increase in RIN prices, as parties bid them up in an attempt to acquire sufficient RINs for compliance.
Some parties argued that we should not assume a draw-down in the bank of carryover RINs in setting the total renewable fuel volume requirements because obligated parties vary in their ability to acquire RINs, with the result being that some obligated parties have a substantial number of carryover RINs, while others have few or none. They argued that setting the volume requirements with the expectation that all or a substantial number of carryover RINs would be used would make compliance even more difficult than it would otherwise be for those who must rely largely or totally on RIN purchases rather than on acquiring RINs through blending activities. We acknowledge this argument and believe that our approach will make the RIN market more fluid and facilitate compliance by parties that choose to comply with RFS
Some parties argued that setting the annual standards so as to intentionally draw down the carryover RIN bank would likely raise RIN prices to a higher degree than the proposed approach and provide increased incentive for expansion of production and delivery infrastructure of renewable fuels. While we acknowledge that higher RIN prices would likely occur from the suggested approach, we do not believe, for the reasons set forth in section II.E of this preamble, that there is an unlimited ability for higher RIN prices to result in increased biofuel supply. We believe we have set the total renewable fuel volume requirements today at the maximum reasonably achievable levels, taking into account the ability of the market to respond to higher standards. Furthermore, even if the commenter were correct, any benefits associated with increased biofuel supply in the short term would need to be balanced against the harmful effects of depletion of the bank of carryover RINs and instability of the RIN market it would cause. Given the importance we place on an adequate RIN bank to provide a needed compliance buffer, as discussed above, we do not choose to exercise our discretion under the general waiver authority to set volumes that require depletion of the bank of carryover RINs.
Some parties argued that our approach to carryover RINs in this rule is inconsistent with past practice, and therefore arbitrary. We disagree. While it is true that a consideration of the availability of carryover RINs factored into our decisions not to exercise statutory waiver authorities in the rule establishing 2013 RFS standards (where the issue arose in the context of deciding whether to use the cellulosic waiver authority), and in our decision to deny waiver requests based on the 2012 drought (where we considered whether to exercise the general waiver authority on the basis of claims of severe harm to the economy), the factual backgrounds for those decisions were vastly different than the situation today. In those cases there was an overabundance of carryover RINs. As noted above, the size of the carryover RIN bank is currently substantially lower, both in absolute terms and as a percentage of the 2016 total renewable fuel volume requirement finalized today. Furthermore, the program is currently facing very considerable challenges that will require new and relatively costly approaches to increasing renewable fuel supplies; we believe, therefore, that the need for a programmatic buffer is even more critical under current circumstances than in the past.
For all of these reasons, we have determined that under current circumstances, carryover RINs should not be counted on to avoid or minimize the need to reduce the 2014, 2015, and 2016 statutory volume targets. However, we note that we may or may not take a similar approach in future years; we will assess the situation on a case-by-case basis going forward, and take into account any lessons learned from implementing the rules applicable to 2014, 2015 and 2016.
In this section we provide illustrative cost estimates for the final standards. By “illustrative costs,” EPA means that the cost estimates provided are not meant to be precise measures, nor do they attempt to capture the full impacts of the rule. These estimates are provided solely for the purpose of showing how the cost to produce a gallon of a “representative” renewable fuel compares to the cost of petroleum fuel. There are a significant number of caveats that must be considered when interpreting these cost estimates. First, as discussed by commenters, there are a number of different feedstocks that could be used to produce advanced fuels, and there is a significant amount of heterogeneity in the costs associated with these different feedstocks and fuels. Some fuels may be cost competitive with the petroleum fuel they replace; however we do not have cost data on every type of feedstock and every type of fuel. Therefore, we do not attempt to capture this range of potential costs in our illustrative estimates.
Second, given time constraints associated with providing estimates for several annual standards in this rule, EPA did not quantitatively assess other direct and indirect costs or benefits of increased biofuel volumes such as infrastructure costs, investment, GHG reduction benefits, air quality impacts, or energy security benefits, which all are to some degree affected by the rule. While some of these impacts were analyzed in the 2010 final rulemaking which established the current RFS program, we have not fully analyzed these impacts for the 2014, 2015, and 2016 volume requirements being established today. We have framed the analyses we have performed for this final rule as “illustrative” so as not to give the impression of comprehensive estimates.
Third, a number of different scenarios could be considered the “baseline” for the assessment of the costs of this rule. One scenario would be the statutory volumes in which case this final rule would be reducing volumes, and reducing costs. For the purposes of showing illustrative overall costs of this rulemaking, we use the preceding year's standard as the baseline (
Fourth, the 2014 standards were not finalized prior to 2014 so it is difficult to estimate what their costs may have been. Market participants may have anticipated a higher final 2014 standard than the market would provide in the absence of the standard, which would contribute to the positive RIN prices witnessed in 2014. In contrast, the final 2014 standards represent reductions in both the advanced and conventional volumes compared to the 2013 standards, suggesting a reduction in costs for this final 2014 rule compared to the 2013 standards. Finally, the final 2014 standards are based on actual production levels in 2014, possibly suggesting that the 2014 standards we are finalizing are what would have happened in the marketplace absent a rulemaking. Viewed in this way, the standards would impose no cost. Given the complexity of this issue, we have not attempted to estimate the costs of the 2014 standards. This issue associated with estimating costs for the 2014 standards also arises with the 2015 standards to a degree. The final standards for 2015 are being set late in the 2015 calendar year, so it is not clear how much extra renewable fuels (and thus costs) the standards are requiring above what the marketplace would have supplied absent them.
EPA is providing cost estimates for three illustrative scenarios—one, if the entire change in the advanced standards is met with soybean oil BBD; two, if the entire change in the advanced standards is met with sugarcane ethanol from Brazil; and three, if the entire change in the total renewable fuel volumes that can be satisfied with conventional biofuels (
Because we are focusing on the wholesale level in each of the three scenarios, these comparisons do not consider taxes, retail margins, and any other costs or transfers that occur at or after the point of blending (
For our first illustrative cost scenario, we consider the costs of soybean-based biodiesel to meet the entire change in the advanced standards. The final 2014 standard is being set at the actual level of advanced biofuels produced in 2014, 2.67 billion gallons. The advanced biofuel volumes are being finalized for 2015 at 2.88 billion gallons and for 2016 at 3.61 billion gallons. Comparing the difference in costs between biomass-based diesel and petroleum-based diesel, we estimate a cost difference that ranges from $1.45 to $1.71/EEG in 2015 and from $1.00 to $2.46/EEG in 2016. Multiplying the per gallon cost estimates by the volume of fuel displaced by the advanced standard, on an energy equivalent basis, results in an overall annual cost of $203 to $240 million in 2015 and $480 to $1,182 million in 2016.
For our second illustrative cost scenario, we provide estimates of what the potential costs might be if all additional volumes used to meet the 2015 and 2016 advanced biofuel standards above the previous year's advanced biofuel standard are met with imported Brazilian sugarcane ethanol. Comparing the difference in costs between sugarcane ethanol and the wholesale gasoline price on a per gallon basis, we estimate cost differences that range from $0.89 to $2.05/EEG in 2015 and from $0.91 to $2.07/EEG in 2016. Taking the difference in per gallon costs for sugarcane ethanol and the wholesale gasoline price and multiplying that by the volume of petroleum displaced on an energy equivalent basis from the advanced standard results in an overall estimated annual cost of $186 to $431 million for 2015 and $656 to $1,493 million for 2016.
For the third illustrative cost scenario, we assess the difference in cost associated with a change in the implied volumes available for conventional (
An alternative way of looking at the illustrative costs in 2016, given the fact that this is a three year rule, is to consider a volume change relative to the 2014 proposed standard. The cost estimate for meeting the 2016 standard would range from $620 to $1,526 million if the entire advanced standard were to be met with soybean-based diesel. The cost estimates would range from $847 to $1,929 million if the entire advanced standard were met with sugarcane ethanol. The cost estimate for meeting the entire conventional standard in 2016 with corn ethanol would range from $895 to $1,181 million.
While it would be instructive to show not only the costs but also the potential benefits of the standards being finalized and understanding both would be an important consideration in any future reassessment of the RFS program, the short timeframe provided for the annual renewable fuel rule process does not allow sufficient time for EPA to conduct a comprehensive analysis of the benefits of the 2015 and 2016 standards and the statute does not require it. Moreover, as discussed in the final rule establishing the 1.28 billion gallon requirement for BBD in 2013, the costs and benefits of the RFS program as a whole are best assessed when the program is fully mature in 2022 and beyond.
EPA received numerous comments related to the costs of the proposed 2014, 2015, and 2016 renewable fuel volumes. One commenter believes that EPA overestimated the cost of additional biodiesel volumes. They claimed that “the program has resulted in providing the public with an alternative fuel source at a lower cost,” and provided documentation of a testimony in which a diesel fuel provider claims to use biodiesel because it's cheaper than diesel. The commenter further states that the price of the RIN offers discounts to the biofuel producer.
Per gallon, wholesale biodiesel prices have been and continue to be more expensive than petroleum diesel. For example, on October 22, 2015, the front month futures price for B100 Soy Methyl Ester (SME) Chicago is $2.32/gallon, while the front month futures price for New York Harbor (NYH) Ultra-Low Sulfur Diesel (ULSD) is $1.47/gallon.
Regarding the RIN discount, EPA acknowledges that biofuel producers may receive discounts due to RIN values. However, the discount a producer may receive due to RIN payment is not a cost, or a benefit; it is a transfer. In our cost methodology, we attempt to calculate the real resource costs associated with using biofuels in comparison to the fossil fuels that they replace. We did not attempt to capture transfers as a result of RIN prices and tax credits, which we acknowledge have distributional impacts. We simply evaluated the cost to consumers by considering per energy equivalent gallon difference in wholesale costs of biofuels against their petroleum alternative given projected market prices.
Multiple commenters expressed concern over the fact that EPA did not perform a full incremental cost-benefit analysis for the annual renewable fuel volumes. API commented that EPA should provide a “complete assessment of the rule's costs on obligated parties, consumers, and other affected parties, along with a comparison of those costs with the rule's benefits.” As EPA has previously stated, the annual rulemaking schedule for setting renewable fuel volumes does not allow sufficient time to conduct a comprehensive benefit-cost analysis. For the 2010 RFS2 final rule, EPA performed a full benefit-cost analysis for 2022, when the program fully matures. For this rulemaking, EPA performed the illustrative cost analysis described above in an attempt to capture some of the impacts of the rule qualitatively. Another commenter acknowledged EPA's 2010 benefit-cost analysis and the time constraint facing the agency in propagating annual standards, but called on EPA to complete an incremental analysis of the full impacts of this rule.
We agree that performing an incremental cost-benefit analysis would be helpful to an extent, but we continue to believe that assessing the program as a whole, over its maturity, is most appropriate.
In this section we discuss the final biomass-based diesel (BBD) applicable volumes for 2014 through 2017. It is important to note that the BBD volume requirement is nested within both the advanced biofuel and the total renewable fuel volume requirements; so that any “excess” BBD produced beyond the mandated BBD volume can be used to satisfy both these other applicable volume requirements. Therefore, in finalizing the applicable BBD volume for 2014-2017, we considered not only the volume for the BBD standard, which effectively guarantees a minimum amount, but also the advanced biofuel and total renewable fuel volume requirements, which historically have played a significant role in determining demand for BBD as well.
In finalizing an applicable BBD volume requirement for 2017, we are establishing the volume requirement but not the percent standard.
The statute establishes applicable volume targets for years through 2022 for cellulosic biofuel, advanced biofuel, and total renewable fuel. For BBD, applicable volume targets are specified in the statute only through 2012. For years after those for which volumes are specified in the statute, EPA is required under CAA section 211(o)(2)(B)(ii) to determine the applicable volume of BBD, in coordination with the Secretary of Energy and the Secretary of Agriculture, based on a review of the implementation of the program during calendar years for which the statute specifies the volumes and an analysis of the following factors:
1. The impact of the production and use of renewable fuels on the environment, including on air quality, climate change, conversion of wetlands, ecosystems, wildlife habitat, water quality, and water supply;
2. The impact of renewable fuels on the energy security of the United States;
3. The expected annual rate of future commercial production of renewable fuels, including advanced biofuels in each category (cellulosic biofuel and BBD);
4. The impact of renewable fuels on the infrastructure of the United States, including deliverability of materials, goods, and products other than renewable fuel, and the sufficiency of infrastructure to deliver and use renewable fuel;
5. The impact of the use of renewable fuels on the cost to consumers of transportation fuel and on the cost to transport goods; and
6. The impact of the use of renewable fuels on other factors, including job creation, the price and supply of agricultural commodities, rural economic development, and food prices.
Due to the delayed issuance of the major regulatory revisions necessary to implement changes to the RFS program enacted through the Energy Independence and Security Act of 2007, EPA established a 2010 BBD standard that reflected volume requirements for both 2009 and 2010, and allowed RINs generated as early as 2008 to be used for compliance with that standard. Given the complexity associated with the 2010 BBD standard, we begin our review of implementation of the program with the 2011 compliance year. This review is required by the CAA, and also provides insight into the capabilities of the industry to produce, import, export, and distribute BBD. It also helps us to understand what factors, beyond the BBD standard, may incentivize the production and import of BBD. The number of BBD RINs generated, along with the number of RINs retired for reasons other than compliance with the annual BBD standards, are shown in Table III.B-1 below.
In reviewing
While the total number of BBD RINs generated in 2013 was 2.74 billion (representing 1.79 billion gallons of BBD), it is also instructive to review the data on volumes that were produced domestically, imported, exported, and retired for reasons other than compliance. Total domestic production of BBD was 1.45 billion gallons (2.19 billion RINs), while imports resulted in an additional 0.34 billion gallons (0.55 billion RINs).
Note that not all of the imported volumes generated BBD (D4) RINs. Some of this volume may have generated Renewable Fuel (D6) RINs or no RINs at all.
As we did for advanced and total renewable fuel in 2014 and 2015, we believe that it is appropriate to establish the 2014 and 2015 volume requirements of BBD to reflect actual supply (including a projection for the latter part of 2015 that is primarily based on supply in the earlier part of the year for which data is available). Therefore, we are finalizing a BBD applicable volume requirement of 1.63 billion gallons for 2014, which represents our estimate of actual BBD supply in 2014. We define supply for 2014 as the number of BBD RINs generated in 2014 that were available for compliance.
Actual supply of BBD in 2014 and the projected actual supply for 2015 is shown in Table III.C-1 below. Further details are provided in a memorandum to the docket.
Some
These same industry commenters suggested that because EPA was late in issuing its final BBD applicable volume rules, some obligated parties might have relied on the proposed 1.28 billion gallon applicable volume requirement for 2014 and 2015, and would now face difficulty in meeting higher volume obligations. Although they did not identify any parties in this situation, there was one obligated party who asserted in separate comments that they had in fact relied on the November 2013 NPRM in planning 2014 compliance for all four of the renewable fuel standards, and requesting that in fairness EPA not now impose a higher obligation for that year. In reply we reiterate that parties were on notice through the November 2013 NPRM that EPA could finalize higher volume requirements than proposed. Indeed, it is the nature of proposed rules that EPA review comments and consider changes, so our doing so should not come as a surprise to anyone. In addition, the tables of applicable volumes in the statute have long provided notice with respect to advanced biofuel, total renewable fuel and cellulosic biofuel that volume requirements could be as high for those fuels as are specified there. We believe that once this commenter complies with the 2014 advanced biofuel and total renewable fuel volume requirements regarding which such extensive notice was available, that compliance with the 2014 BBD volume requirement will likely either be satisfied, or easily satisfied. Even if the party needs to adjust the types of advanced biofuel RINs they own to acquire sufficient BBD RINs to comply with the BBD standard, they will be able to sell the non-BBD advanced RINs for a nearly identical price to the BBD RINs they will need to purchase.
Even if an obligated party faced compliance challenges for 2014, CAA section 211(o)(2)(5)(A)-(D) provides two additional compliance flexibility options that an obligated party may utilize if they are unable to meet any of the 2014 standards, including their 2014 BBD volume obligation with RINs generated in 2014. First, to the extent that any shortfall of BBD RINs might exist, an obligated party could utilize carryover BBD RINs (D4) to meet their compliance obligation. As we discussed
We recognize that the same number of BBD RINs will likely be retired for compliance with the 2014 RFS standards whether we set the BBD volume requirement at 1.28 versus 1.63 billion RINs, because complying with the 2014 advanced and total renewable fuel standards will require retirement of 1.63 billion BBD RINs. However, in light of this fact, the ease with which RINs may be traded, as well as the availability of carryover RINs and the deficit carry-forward option, we are not persuaded that any obligated party will have more difficulty complying with a 1.63 billion gallon BBD volume requirement as compared to a 1.28 billion gallon BBD volume requirement. Therefore, we do not believe that sufficient justification has been presented by commenters for EPA to deviate from the proposed approach of setting the 2014 BBD volume requirement as equal to the actual 2014 BBD supply. In addition, we believe that lowering the proposed 2014 BBD volume requirement would send a potentially chilling message to investors in the BBD industry that would be contrary to the objectives of the CAA to incentivize the growth of renewable fuel volumes.
For all of these reasons, we believe that it is reasonable and appropriate to establish the 2014 BBD applicable volume requirement as equal to 1.63 billion gallons, the volume actually produced and imported in 2014 and which is available for compliance. This is consistent with the approach we are taking to establishing the total renewable fuel, advanced biofuel, and cellulosic biofuel standards in 2014. Since we are establishing the requirement for a time period that has already passed, and setting the requirement equal to the available supply of 2014 BBD RINs, we believe that our action will result in no impacts with respect to the factors listed under CAA section 211(o)(2)(B)(ii)(I)-(VI).
The statute requires that, in determining the applicable volume of BBD, we review the implementation of the program in previous years. Based on the fact that the industry made more BBD available in 2011 and 2013 than volume requirements for those years, we conclude that the BBD standard is not the sole driver for the amount of BBD produced or imported into the United States.
However, we recognize that in addition to being a component of advanced biofuel and total renewable fuel, Congress also intended that BBD have its own specific standard. Given that the statute requires annual increases in advanced biofuel through 2022, it may be appropriate for BBD to play a specific and increasing role in supplying advanced biofuels to the market. While we generally believe that the advanced and total volume requirements are sufficient to incentivize continued growth in the production and consumption of BBD in most years, circumstances may arise that result in unfavorable market conditions for the production and consumption of BBD, as was the case in 2012. We believe there is value in providing some degree of certainty to BBD producers that there will be a market for the fuel they produce for circumstances such as this. Therefore, this final rule seeks to balance the goals of supporting the BBD industry and incentivizing the production of non-BBD advanced biofuels by providing a guaranteed, increasing market for BBD, while at the same time providing room under the advanced standard for other types of advanced biofuels, and thus incentivizing their growth as well. We have considered the ability of the advanced biofuel and total renewable fuel standards to incentivize an increasing volume of BBD, the implementation of the RFS program to date, and the statutory factors listed in CAA section 211(o)(2)(B) (discussed in further detail in Section III.E below). We have also consulted with USDA and DOE in establishing the final requirements.
The BBD standard is nested within the advanced biofuel and total renewable fuel standards. This means that when an obligated party retires a BBD RIN (D4) to satisfy their BBD obligation, this RIN also counts towards meeting their advanced biofuel and total renewable fuel obligations. It also means that obligated parties may use BBD RINs in excess of their BBD obligations to satisfy their advanced biofuel and total renewable fuel obligations. Higher advanced biofuel and total renewable fuel standards, therefore, create demand for BBD, especially if there is an insufficient supply of other advanced or conventional renewable fuels to satisfy the standards, or if BBD RINs can be acquired at or below the price of other advanced or conventional biofuel RINs.
In reviewing the implementation of the RFS program to date, it is apparent that the advanced and/or total renewable fuel requirements were in fact helping grow the market for volumes of biodiesel above the BBD standard. Table III.D.1-1 below shows the number of BBD RINs generated and available for use towards demonstrating compliance
In 2012 the available BBD RINs were slightly less than the BBD standard, despite the continued opportunity for BBD to contribute towards satisfying the advanced and total renewable fuel volume requirements. There are a number of reasons this may have been the case. The drought in 2012 resulted in reduced production of soy beans and other oilseed crops that provide feedstocks for the BBD industry. Compounding this effect was the lower corn harvest in 2012, which increased the demand for soy beans and other fats and oils in the animal feed market. The biodiesel tax credit, which had been in place since the end of 2010, expired at the end of 2011. Finally, and perhaps most significantly, the E10 blendwall had not yet been reached in 2012. This meant that meeting the advanced biofuel requirements through the use of advanced ethanol, primarily sugar cane ethanol, in E10 blends, rather than additional volumes of BBD was still a viable option. Indeed, in 2012 over 600 million RINs were generated for advanced ethanol. While we believe these circumstances are unlikely to be repeated in future years, this does demonstrate that the BBD standard can still have an impact despite the ability in some years for the advanced and total renewable fuel volume requirements to incentivize additional biodiesel and renewable diesel volumes beyond the BBD standard.
The prices paid for advanced biofuel and BBD RINs beginning in early 2013 through 2015 also support the conclusion that advanced biofuel and/or total renewable fuel standards provide a sufficient incentive for additional biodiesel volume beyond what is required by the BBD standard. Because the BBD standard is nested within the advanced biofuel and total renewable fuel standards, we would expect the price of BBD RINs to exceed that of advanced and conventional renewable RINs.
In establishing the BBD and cellulosic standards as nested within the advanced biofuel standard, Congress clearly intended to support development of BBD and cellulosic biofuels, while also providing an incentive for the growth of other non-specified types of advanced biofuels. That is, the advanced biofuel standard provides an opportunity for other advanced biofuels (advanced biofuels that do not qualify as cellulosic biofuel or BBD) to be used to satisfy the advanced biofuel standard after the cellulosic biofuel and BBD standards have been met. Indeed, since Congress specifically directed growth in BBD only through 2012, leaving development of volume targets for BBD to EPA for later years while also specifying substantial growth in the cellulosic and general advanced categories, we believe that Congress clearly intended for EPA to evaluate in setting BBD volume requirements after 2012 the appropriate rate of participation of BBD within the advanced biofuel standard.
The unspecified advanced biofuel volume in the statutory tables in CAA section 211(o)(2)B)(i) starts at 0.25 billion gallons in 2013 and grows to 3.5 billion gallons in 2022. The actual size of the unspecified volume of advanced biofuel in any given year is, however, heavily dependent on EPA actions. Increasing the BBD standard above 1 billion gallons, as we did in 2013, reduced the potential market for other advanced biofuels to contribute towards meeting the advanced biofuel standard in that year. Conversely, reducing the cellulosic biofuel standard while simultaneously maintaining the advanced biofuel standard (or reducing it by a lesser amount), as we have done each year since 2010, increases the potential market for all advanced biofuels, including BBD. While each year's volume requirements are established in consideration of the volumes of various types of biofuels expected to be reasonably attainable in that year, we are also cognizant that the annual standards send messages to the market that can influence the direction of research and investment.
When viewed in a long-term perspective, BBD can be seen as competing for research and development dollars with other types of advanced biofuels for participation as advanced biofuels in the RFS program. In addition to the long-term impact of our action in establishing the BBD volume requirements, there is also the potential for short-term impacts during the compliance years in question. Although we are setting the advanced standard at a level that reflects growth in volumes that is reasonably attainable, we are not setting the standard at the maximum theoretical level that reflects the highest potential for domestic production plus import. As described in Section II.F, there is substantial uncertainty, especially regarding import volumes, that cautions against such an approach. Therefore, by setting the BBD volume requirement at a level lower than the advanced biofuel volume requirement (and lower than the expected production of BBD to satisfy the advanced biofuel requirement), we are allowing the potential for some competition between BBD and other advanced biofuels (including imported advanced biofuels) to satisfy the advanced biofuel volume standard. We believe that this competition will also help to encourage, over the long term, the development and production of a variety of advanced biofuels. However, in the short term it could also result in lower cost advanced biofuels.
BBD, like all non-cellulosic advanced biofuels, must, by definition, achieve lifecycle greenhouse gas reductions of at least 50% relative to the petroleum fuels it displaces. Thus, the environmental benefits of BBD are comparable to those of other non-cellulosic advanced biofuels. Increasing the portion of the advanced standard that comprises a guaranteed market for BBD would over time likely reduce competition among advanced biofuels and could dis-incentivize research and development of advanced biofuels that are potentially more economical or environmentally preferable (including for non-GHG
We received comments that the consideration of competition within the advanced biofuel pool between BBD and other advanced biofuels, and the potential for lower compliance costs cited in our proposed rule, are not included in the list of factors in 42 U.S.C. 7545(o)(2)(B)(ii)(V) that EPA is to consider in establishing the volume requirement for BBD. EPA respectfully disagrees. Three of the factors specified in the statute are indeed related to the considerations discussed above. The “impact of the use of renewable fuels on the cost to consumers of transportation fuel and on the cost to transport goods” referenced in CAA section 211(o)(2)(B)(ii)(V) is relevant, since we believe a diverse advanced biofuel pool will potentially result in decreased costs associated with the use of advanced biofuels and, consequently, decreased costs to consumers. Similarly, the “impact of the production and use of renewable fuels on the environment” referenced in CAA section 211(o)(2)(B)(ii)((I) is relevant, since we believe that incentivizing research and development in a variety of advanced biofuels could lead to the development of biofuels that have more benign effects on the environment than those that are currently available. As noted above, “the impact of renewable fuels on the energy security of the United States” referenced in CAA section 211(o)(2)(B)(ii)(II) is relevant, since we believe that incentivizing the development of a diverse array of biofuels will increase energy security Finally, we note that the list of factors specified in the statute is not exclusive; that is EPA is not precluded from considering additional factors that advance the statutory objectives when it sets applicable volumes for years not specified in the statute.
While a single-minded focus on the ability of the advanced and total renewable fuel standards to incentivize increasing production of advanced biofuels other than BBD would suggest that a flat or even decreasing BBD volume requirement may be the optimal solution, this is not the only consideration. Despite many of these same issues being present in 2013, EPA decided to increase the BBD standard in 2013 to 1.28 billion gallons. EPA's decision to establish this higher BBD volume for 2013 was made against the backdrop of the BBD industry having increased production from about 400 million gallons in 2010 to about 1 billion gallons in 2011.
During the development of the 2013 standards rulemaking, we were also concerned that production of cellulosic biofuel, also nested within the advanced biofuel requirement, was lagging significantly behind the statutory volume target. The shortfall in cellulosic biofuel volume meant that either other sources of advanced biofuel would be necessary to fulfill the specified volumes in the statute for advanced biofuel, or that EPA would need to waive a portion of the advanced biofuel volume target. It is in this context that we determined that raising the BBD requirement to 1.28 billion gallons was appropriate. Most importantly, an applicable volume requirement of 1.28 billion gallons was expected to encourage continued investment and innovation in the BBD industry, providing necessary assurances to the industry to increase production for 2013 while also serving the long term goal of the RFS statute to increase volumes of advanced biofuels over time.
Although the BBD industry has performed well in 2013 and in subsequent years, we believe that continued appropriate increases in the BBD volume requirement will help provide stability to the BBD industry and encourage continued growth. This industry is currently the single largest contributor to the advanced biofuel pool, one that to date has been largely responsible for providing the growth in advanced biofuels envisioned by Congress. Nevertheless, there has been variability in the number of biodiesel facilities in production over the last few years, as well as the percent utilization of individual facilities, both of which contribute uncertainty in the rate of production in the near future, and which can be mitigated to some degree with an increase in the BBD applicable volume.
In the June 10, 2015 NPRM we proposed a 1.7 billion gallon BBD volume requirement for 2015, anticipating that the growth over actual levels observed in the first part of the year was possible despite late issuance of the proposal. The market responded as we anticipated and, indeed, slightly exceeded our expectations. During the first nine months of 2015 for which data are now available, 2.05 billion BBD RINs, representing 1.34 billion gallons of biodiesel and renewable diesel, were generated. When this rate of production is extrapolated to the end of the year, and taking into account the heightened end-of-year production we expect, based on past experience, as well as expected RIN corrections and retirements due to exports, we now estimate an actual BBD volume of 1.73 billion gallons for 2015.
With the considerations discussed in sections III.D.1-3 in mind, as well as our analysis of the factors specified in the statute and described below, and in coordination with the Departments of Agriculture and Energy, we are finalizing the applicable volume of BBD at 1.9 billion gallons for 2016 and 2.0 billion gallons for 2017. These volumes are higher than the 1.8 and 1.9 billion gallons proposed for 2016 and 2017, and reflect the fact that we are finalizing an increase in the advanced biofuel requirement for 2016, from the 3.4 billion gallons we proposed, to 3.61 billion gallons in the final rule. We have decided to dedicate a portion of this increase to BBD, and leave the remainder as unspecified advanced biofuel, and thus available for any advanced biofuel to fill, for the same reasons reflected in the proposal and this final rule for establishing the BBD volume requirements: To provide additional support for the BBD industry while allowing room within the advanced biofuel volume requirement for the participation of non-BBD advanced fuels.
We believe this final rule strikes the appropriate balance between providing a market environment where the development of other advanced biofuels is incentivized, while also realizing the benefits associated with increasing the required volume of BBD. Given our final volumes for advanced biofuel in these years, setting the BBD standard in this manner continues to allow a considerable portion of the advanced biofuel volume to be satisfied by either additional gallons of BBD or by other unspecified types of qualifying advanced biofuels (see Table III.D.4-1 below). While we have not yet determined the applicable volume of total advanced biofuel for 2017, we anticipate the continued growth in the advanced biofuel standard such that the advanced standard will provide an incentive for both increasing volumes of BBD and other advanced biofuels. We believe maintaining this unspecified or other advanced biofuel volume will provide the incentive for development and growth in other types of advanced biofuels. At the same time, allowing the portion of the advanced biofuel volume requirement that is dedicated to BBD to increase concurrently with the increase in the overall advanced biofuel volume requirement will contribute to market certainty for both the BBD industry and the renewable fuels program in general.
EPA received comments on our proposed rule providing data suggesting that sufficient BBD feedstocks, production facilities, and fuel distribution infrastructure existed to produce, import, and consume volumes of BBD in 2016-2017 that exceed the volume requirements established in this rule.
EPA also received comments stating that increasing the BBD volume requirement to reflect actual BBD available volumes would have the advantage of helping to ensure that BBD, rather than imported sugar cane ethanol, would be used to satisfy the advanced standard. The commenters claimed that this was preferable because BBD does not contribute to the renewable fuel consumption challenges associated with the E10 blendwall, and because BBD is generally produced in the United States, while sugar cane ethanol is almost exclusively an imported product. They claimed that requiring additional volumes of a domestic product rather than an imported one would have positive impacts on the economy of the United States and aid rural economic development, and that these benefits justified a higher BBD standard.
EPA acknowledges that if we were to increase the BBD volume standard we would increase the guaranteed market for BBD, and reduce the likelihood that significant volumes of sugar cane ethanol would be imported to satisfy the advanced and total renewable fuels standards. We do not agree, however, that this is a necessary step to promote the viability and growth of the BBD industry. In reviewing the history of the program, as shown above, EPA notes that BBD production, import, and consumption has been strong and increasing each year since 2011. In particular, we note that in 2013 BBD volumes rose sharply, and ethanol imports simultaneously fell and have stayed low.
The data EPA has presented in the preceding sections strongly suggests that despite the ongoing potential for competition from sugar cane ethanol and biodiesel imports, the BBD industry, supported by the advanced and total renewable fuel standards, has achieved and can continue to achieve production volumes beyond levels needed to satisfy the BBD volume requirement. Given the constraints on ethanol use associated with the E10 blendwall even if sugar cane ethanol imports were to increase, it is still likely that there would be a strong market for BBD to help satisfy the total renewable fuel requirements. Finally, in light of the broad programmatic objective of the RFS program to increase the content of biofuels in U.S. transportation fuel, we believe that it would be counterproductive to design the standards in such a way as to intentionally discourage or disincentivize the import of foreign biofuels.
In finalizing these standards for BBD for 2014-2017 EPA has taken into account the statutory requirements found in CAA section 211(o)(2)(B)(ii), including coordination with the Departments of Energy and Agriculture, review of the implementation of the renewable fuels program to date, and analysis of the statutory factors specified in CAA section 211(o)(2)(B)(ii)(I)-(VI). Of particular relevance in our review of the implementation of the renewable fuels program to date were the circumstances and context that led us to increase the BBD standard from 1.0 billion gallons in 2012 to 1.28 billion gallons for 2013, and the biofuel industry's successful performance in 2013. We have also reviewed the statutory factors in the context that the BBD volume requirement is nested within the advanced biofuels and total renewable fuels volume requirements. This discussion of the statutory factors is found in Section III.E., below.
In deciding to finalize the applicable volume of 1.9 billion gallons of BBD for 2016, with an additional 100 million gallon increase for 2017 to 2.0 billion gallons, we considered not only the short-term impacts, but also the potential long-term impacts of our action on the RFS program. We took into account the competitive impacts such an increase in the BBD volume requirement would likely have on other advanced biofuel producers already in the marketplace as well as on potential new market entrants. This increase in the BBD volumes through 2017 should result in ongoing investment and growth for BBD, while also providing for continued investment and growth in other advanced biofuels.
Raising the guaranteed BBD volume beyond the volumes in this rule so that it approaches the maximum possible volume of BBD could result in a less competitive advanced biofuels market, increasing RIN prices, and a less efficient market-driven renewable fuels program. Our decision today to finalize the BBD volumes for 2016-2017 at 1.90 and 2.0 billion gallons per year respectively, would not be expected to lead to such an adverse result. We believe that the final BBD volume increases for 2016-2017 will both contribute to market stability for the renewable fuels program and continue to promote a growing and competitive advanced biofuels marketplace, one which encourages the growth and development of diverse biofuels along with additional volumes of BBD beyond the volumes required by the BBD standard.
In this section we discuss our considerations of the statutory factors set forth in CAA section 211(o)(2)(B)(ii)(I)-(VI). As discussed earlier in Section III.D.1, the BBD volume requirement is nested within the advanced biofuel requirement and the advanced biofuel requirement is, in turn, nested within the total renewable fuel volume requirement. This means that any BBD produced beyond the mandated BBD volume can be used to satisfy both these other applicable volume requirements. The result is that in considering the statutory factors we must consider the potential impacts of increasing BBD in comparison to other advanced biofuels.
Given the fact that the 2014 compliance year has passed, we believe that our action in setting the 2014 BBD volume requirement will result in no real-world impacts, including no impacts with respect to the factors listed under CAA section 211(o)(2)(B)(ii)(I)-(VI). For example, there is no longer any ability for other advanced biofuels to compete with BBD for a greater share of the advanced biofuel pool in 2014, so there would be no marginal benefit in terms of incentivizing production of such fuels in setting a lower volume requirement than the volume of BBD that was actually produced and imported and available for compliance in 2014. Setting the applicable volume at a higher level than was actually produced and available for compliance would require a draw-down in the bank of carryover RINs, which EPA does not consider prudent for the reasons discussed in Section II.H of this preamble. In light of these considerations, we are finalizing the 2014 applicable volume for BBD as equal to the volume actually produced and imported, which is available for compliance. We believe this approach is also appropriate for the 2015 BBD standard. While there is still one month remaining in 2015, we believe it is similarly appropriate to set the biomass-based diesel standard for 2015 at the level of BBD that we project will actually be produced and imported and available for compliance in 2015 given that the primary benefits of allowing for opportunity for non-BBD fuels in the context of the advanced biofuel standard is not applicable for the 11 months of 2015 that have passed, and this rule is being issued too late to significantly influence production and use of BBD and advanced biofuel in the remainder of 2015.
EPA's primary assessment of the statutory factors for 2016 is that because the final advanced biofuel volume requirement for 2016 reflects the advanced biofuel volumes (including BBD) that can be reasonably attained, and because the BBD requirement is
This assessment is based, in part, on our review of the RFS program implementation to date, as discussed in Sections III.B and III.D. Since our decision on the BBD volume requirement for 2016 is not expected to impact the volume of BBD which is produced and imported during this time period, we do not expect our decision to result in a difference in the factors we are required to consider pursuant to CAA section 211(o)(2)(B)(ii)(I)-(VI). However, we note that our principal approach of setting BBD volume requirements at a higher level in 2016, while still at a volume level lower than anticipated overall production and consumption of BBD, is consistent with our evaluation of statutory factors in sections 211(o)(2)(B)(ii) (I), (II) and (III), since we believe that our decision on the BBD volume requirement can have a positive impact on the future development and marketing of other advanced biofuels and can also result in potential environmental and energy security benefits, while still sending a supportive signal to potential BBD investors, consistent with the objectives of the Act to support the continued growth in production and use of renewable fuels.
Similarly for 2017, even though we are finalizing only the 2017 BBD volume requirement at this time and not the 2017 advanced biofuel requirement, we believe this same primary assessment is appropriate since we anticipate that the 2017 advanced biofuel requirement will be set to reflect ambitious but reasonably attainable volumes in the use of all advanced biofuels and that the advanced biofuel volume standard will be expected to drive BBD production and use.
As an additional supplementary assessment, we have considered the potential impacts of modifying the applicable volume of BBD from the final levels of 1.90 billion gallons in 2016, and 2.0 billion gallons in 2017, based on the assumption that in guaranteeing BBD volumes at any given level there could be greater use of BBD and a corresponding decrease in the use of other types of advanced biofuels. However, setting a higher or lower BBD volume requirement than the final levels would only be expected to impact BBD volumes on the margin, protecting to varying degrees this advanced biofuel from being outcompeted by other advanced biofuels. In this supplementary assessment we have considered the statutory factors found in CAA section 211(2)(B)(ii), and as described in a memorandum to the docket,
The EPA received numerous comments pertaining to the consideration of the statutory factors for the 2016-2017 BBD volume requirement. Following are responses to a number of key issues raised by NBB. Additional comments and EPA responses can be found in the Response to Comment document that accompanies this final rule.
NBB stated that we improperly based our consideration of the statutory factors on a comparison of BBD to other advanced biofuels, rather than to diesel fuel. They asserted that BBD would not compete with other advanced biofuels because EPA proposed to set the advanced biofuel volume at maximally achievable levels, and that no competition would be present if all available advanced biofuels had to be used. They suggested that setting the BBD standard at a higher level than proposed would actually result in BBD competing against diesel fuel, and therefore, EPA should analyze the impacts of displacing diesel fuel with BBD. We disagree. In setting the advanced biofuel volume requirement, we have assumed reasonably attainable volumes in BBD and other advanced biofuels. After determining that it is in the interest of the program, as described in Sections III.D.1-D.3, to set the BBD volume requirement at a level below anticipated BBD production and imports, so as to provide continued incentives for research and development of alternative advanced biofuels, it is apparent that excess BBD above the BBD volume requirement will compete with other advanced biofuels, rather than diesel. The only way for EPA's action on the BBD volume requirement to result in a direct displacement of petroleum-based fuels, rather than other advanced biofuels, would be if the BBD volume requirement were set larger than the total renewable fuel requirement. However, since BBD is a type of advanced biofuel, and advanced biofuel is a type of renewable fuel, the BBD volume requirement could never be larger than the advanced requirement and the advanced biofuel requirement could never be larger than the total renewable fuel requirement. Thus, EPA continues to believe that it is appropriate to evaluate the impact of its action in setting the BBD volume requirements by evaluating the impact of using BBD as compared to other advanced biofuels to determine what increment of the advanced biofuel standard that is not guaranteed to BBD.
NBB also asserted that our analysis of the desirability of setting the BBD volume requirement in a manner that would promote the development and use of a diverse array of advanced biofuels is prohibited by statute. We disagree with these comments and continue to believe that the statutory volumes of renewable fuel established by Congress in CAA section 211(o)(2)(B) provide an opportunity for other advanced biofuels (advanced biofuels that do not qualify as cellulosic biofuel or BBD) to be used to satisfy the advanced biofuel standard after the cellulosic biofuel and BBD standards have been met. Ensuring that a diversity of renewable biofuels are produced is consistent with CAA section 211(o)(2)(A)(i),which requires that the EPA “ensure that transportation fuel sold, or introduced into commerce in the United States . . . contains at least the applicable volume of renewable fuel, advanced biofuels, cellulosic biofuel, and biomass-based diesel . . .”. Because the BBD standard is nested within the advanced biofuel and total renewable fuel standards, when an obligated party retires a BBD RIN (D4) to satisfy their obligation, this RIN also counts towards meeting their advanced biofuel and total renewable fuel obligations. It also means that obligated parties may use BBD RINs in excess of their BBD obligations to satisfy their advanced biofuel and total renewable fuel obligations. To the extent that obligated parties are required to achieve compliance with the overall advanced biofuel standard using higher volumes of BBD D4 RINs, they forgo the use of other biofuels considered advanced biofuels to meet the advanced biofuel requirement. Therefore, the higher the BBD volume standard is, the lower the opportunity for other non-BBD advanced biofuels to compete for market share within the context of the advanced biofuel standard. When viewed in a long-term perspective, BBD can be seen as competing for research and development dollars with other types of advanced biofuels for participation as advanced biofuels in the RFS program.
Finally, NBB stated that the EPA previously found statutory factors supported greater annual increases in BBD volume requirement for 2013 and the statutory factors analysis developed to justify the 2016 and 2017 BBD volume requirements contradicts the analysis EPA put forward in 2013. We disagree. As in 2013, we have determined that incremental increases in the 2016 and 2017 BBD volume requirement are appropriate to provide continued support to the BBD industry. We did this in 2013, acknowledging the important role the industry thus far had played in providing advanced biofuels to the marketplace, and in furthering the GHG reduction objectives of the statute. We did not in 2013, and are not today, setting the BBD volume requirement at the maximum potential production volume of BBD.
In the past several years the cellulosic biofuel industry has made significant progress towards commercial scale production. Quad County Corn Processors produced the first cellulosic biofuel RINs from corn kernel fiber at a corn ethanol plant in 2014. In addition, in 2014 two large scale cellulosic ethanol facilities owned and operated by Abengoa and Poet completed construction. EPA also determined that compressed natural gas (CNG) and liquefied natural gas (LNG) produced from biogas from landfills, municipal waste-water treatment facility digesters, agricultural digesters, and separated municipal solid waste (MSW) digesters are eligible to generate cellulosic RINs. This determination led to a significant increase in cellulosic RIN generation beginning in late 2014, as fuel that previously had been qualified to generate advanced biofuel RINs could now generate cellulosic RINs. Efforts continue to be made at facilities across the country to reduce both capital costs and production costs associated with cellulosic biofuel production through technology advances and the development of best practices gained through operating experience. EPA also continues to support the ongoing development of cellulosic biofuels through actions such as the evaluation of new pathways with the potential to generate cellulosic biofuel RINs. This section describes the available supply of cellulosic biofuel RINs in 2014, the volumes that we project will be produced or imported in 2015 and 2016, and some of the uncertainties associated with these volumes projections.
In this rule we are finalizing the proposed approach of using a slightly different methodology to determine the projected available volume of cellulosic biofuel for each of the three years. Our approach to each of these years can broadly be described as one that seeks to use actual production volumes where they are available (such as for all of 2014 and the first nine months of 2015) and to project production volumes from likely production facilities for future months in which actual production volumes are not available. In order to project the volume of cellulosic biofuel production in 2015 and 2016 we considered the Energy Information Administration's projections of cellulosic biofuel production,
The volumes of renewable fuel to be used under the RFS program each year (absent an adjustment or waiver by EPA) are specified in CAA section 211(o)(2). The volumes of cellulosic biofuel specified in the statute for 2014, 2015, and 2016 are shown in Table IV.A-1 below. The statute provides that if EPA determines, based on EIA's estimate, that the projected volume of cellulosic biofuel production in a given year is less than the statutory volume, then EPA is to reduce the applicable volume of cellulosic biofuel to the projected volume available during that calendar year.
In addition, if EPA reduces the required volume of cellulosic biofuel below the level specified in the statute, the Act also indicates that we may reduce the applicable volumes of advanced biofuels and total renewable fuel by the same or a lesser volume, and we are required to make cellulosic waiver credits available. Our consideration of the 2014, 2015, and 2016 volume requirements for advanced biofuels and total renewable fuel is presented in Section II.
In order to project cellulosic biofuel production for 2015 and 2016 we have tracked the progress of several dozen potential cellulosic biofuel production facilities. As we did in establishing the 2013 annual volumes, we have focused on facilities with the potential to produce commercial scale volumes of cellulosic biofuel rather than small R&D or pilot-scale facilities. We did so because the larger commercial-scale facilities are much more likely to generate RINs for the fuel they produce and the volumes they produce will have a far greater impact on the cellulosic biofuel standards for 2015-2016. The volume of cellulosic biofuel produced
From this list of commercial scale facilities we used information from EMTS and publically available information, and information provided by representatives of potential cellulosic biofuel producers, to make a determination of which facilities are most likely to produce cellulosic biofuel and generate cellulosic biofuel RINs in 2015 and 2016. Each of these companies was investigated further in order to determine the current status of its facilities and its likely cellulosic biofuel production and RIN generation volumes for 2015 and 2016. Both in our discussions with representatives of each company
Our approach for each of the three years is discussed in more detail in Sections IV.D-IV.F below. The remainder of this Section discusses the current status of the companies and facilities EPA expects may be in a position to produce commercial scale volumes of cellulosic biofuel by the end of 2016. This information forms the basis for our final standards for cellulosic biofuel for the final three months of 2015, and all of 2016.
There are a number of companies and facilities
In addition to the potential sources of cellulosic biofuel located in the United States, there are several foreign cellulosic biofuel companies that may produce cellulosic biofuel in the remainder of 2015 or 2016. These include facilities owned and operated by Beta Renewables, Enerkem, Ensyn, GranBio, and Raizen. All of these facilities use fuel production pathways that have been approved by EPA for cellulosic RIN generation provided eligible sources of renewable feedstock are used. These companies would therefore be eligible to register these facilities under the RFS program and generate RINs for any qualifying fuel imported into the United States. While these facilities may be able to generate RINs for any volumes of cellulosic biofuel they import into the United States, demand for the cellulosic biofuels they produce is expected to be high in local markets.
EPA is charged with projecting the volume of cellulosic biofuel that will be produced or imported into the United States. For the purposes of this final rule we have considered all of the companies who have registered foreign facilities under the RFS program to be potential sources of cellulosic biofuel in the remainder of 2015 and 2016. We believe that due to the strong demand for cellulosic biofuel in local markets, the significant technical challenges associated with the operation of cellulosic biofuel facilities, and the time necessary for potential foreign cellulosic biofuel producers to register under the RFS program and arrange for the importation of cellulosic biofuel to the United States, cellulosic biofuel imports from facilities not currently registered to generate cellulosic biofuel RINs are highly unlikely in 2015 and 2016. We have therefore only considered foreign cellulosic biofuel production from facilities that are currently registered in our projection of available volume of cellulosic biofuel in 2015 and 2016. Two foreign facilities that have registered as cellulosic biofuel producers have already generated cellulosic biofuel RINs for fuel exported to the United States; projected volumes from each of these facilities are included in our projection of available volumes for 2015 and 2016. One facility has registered as a cellulosic biofuel producer, but has not yet generated any cellulosic RINs. EPA contacted representatives of this facility and received confirmation that they intended to export cellulosic biofuel to the United States in 2016. EPA has therefore included potential volumes from this facility in our 2016 volume production projections.
The information we have gathered on cellulosic biofuel producers, described above, along with the production estimates from EIA and data collected through EMTS, forms the basis for our projected volumes of cellulosic biofuel production for each facility in 2015 and 2016. As discussed above, we have focused on commercial scale cellulosic biofuel production facilities.
By 2016 there are a number of cellulosic biofuel production facilities that have the potential to produce fuel at commercial scale. Each of these facilities is discussed in a memorandum to the docket,
Section
EIA indicated in their letter that they did not include estimates for cellulosic biofuel produced from biogas from landfills, municipal wastewater treatment facilities, separated MSW digesters, or agricultural digesters or those producing renewable heating oil, which represent approximately 90% of our projected cellulosic biofuel volume for 2016. When limiting the scope of our projection to the companies assessed by EIA, we note that while our volume projections are not identical, they are very similar. EPA projects approximately 4 million gallons of liquid cellulosic biofuel will be produced in 2015 (approximately 2 million gallons has been produced through September 2015, and we project an additional 2 million gallons will be produced through the end of 2015). This projection includes renewable heating oil (up to 1 million gallons) which was not considered in EIA's projection. For 2016 EPA projects 23 million gallons of liquid cellulosic biofuel will be produced. Of this 23 million gallons, up to 3 million gallons is expected to come from renewable heating oil, and up to 2 million gallons is expected to come from imported cellulosic biofuel. Neither of these sources are included in EIA's projection. EIA did not provide detail on the basis of their projections other than the list of expected producers shown above, so we cannot say precisely why EPA and EIA's projections differ. We further note that if we used EIA's projections for liquid cellulosic biofuel production without modification to reflect other data and our judgement the impact on the cellulosic biofuel standard overall for 2016 would be less than 5%.
EPA is charged with projecting the available volume of cellulosic biofuel for each year, and to reduce the applicable volume of cellulosic biofuel to the level projected to be available for years in which the projected available volume falls below the cellulosic biofuel applicable volume target specified in the CAA section 211(o)(2). EPA believes that for any historical time period, the required projection is best calculated as the sum of the cellulosic biofuel RINs (D3) and the cellulosic diesel RINs (D7) generated, adjusted for RINs that are retired for purposes other than compliance with the annual standards. EPA publishes the number of cellulosic
To project
For months in which information is unavailable EPA has generally used the projection methodology described in the proposed rule, with one change based on comments received on the NPRM. Consistent with our proposed rule, our projection methodology starts with estimating a range of potential production volumes for each company for the portion of 2015 where production data is not available.
In establishing a range for each company, we began by determining an appropriate low end of the range. The low end of the range for each company is designed to represent the volume of fuel EPA believes each company would produce if they are unable to begin fuel production on their expected start-up date and/or if they experience challenges that result in reduced production volumes or a longer than expected ramp-up period. In this final rule EPA has set the low end of the production range for each company based on the volume of RIN-generating cellulosic biofuel the company has produced in the most recent 12 months for which data is available. Because we are not attempting to determine a low end of a likely production range for a full year, but rather only the months in 2015 for which data are not available, this number is then multiplied by a scaling factor
This approach provides us with an objective methodology for calculating the low end of the potential production range for each company that we believe is appropriate in light of the history of start-up delays and missed production targets in the cellulosic biofuel industry. If a company has not yet begun producing RIN-generating volumes of cellulosic biofuel, our experience suggests that they may experience challenges in progressing toward commercial-scale production that would result in the delay of the production of cellulosic biofuel. We acknowledge that in the majority of cases cellulosic companies that have begun producing fuel and are currently in the start-up and ramp-up phases of production will increase their production of cellulosic biofuel from one year to the next as they work towards production rates at or near the facility capacity. Fuel production by these companies may, however, be interrupted, either intentionally or unexpectedly, and these interruptions may hinder the ability of these companies to increase biofuel production year over year. Several commenters also noted low market prices for cellulosic biofuel as an additional reason that fuel production may be reduced or suspended until such a time as the market for the fuel produced improves. We will account for the likelihood of increasing production in developing the high end of each company's production range. Finally, there may be cases in which information is available that suggests a company is unlikely to meet the production volumes achieved in the previous 12 months for which data is available, due to technical, financial, or legal difficulties. We do not believe this is the case with any of the companies projected to produce cellulosic biofuel in 2015.
It is important to note that the low end of the range does not necessarily represent a worst-case scenario. The worst-case scenario for any of these facilities for the months in which we are projecting production is no production, as it is always possible that extreme circumstances or natural disasters may result in extended delays, facility damages, or facility closures. While not denying such a possibility, we nevertheless believe it is generally appropriate to use the production over the previous 12 months as the low end of the range, with exceptions made where available information indicates that such production may be unlikely. In situations where a company has not produced any cellulosic biofuel in the previous 12 months, we believe it is appropriate to use zero as the low end of the projected production range given the many uncertainties and challenges associated with the commissioning and start-up of a new cellulosic biofuel production facility we have observed to date.
To determine the high end of the range of expected production volumes for each company we considered a variety of factors, including the expected start-up date and ramp-up period, facility capacity, and fuel off-take agreements. As a starting point, EPA calculated a production volume using the expected start-up date, facility capacity, and a benchmark of a six-month straight-line ramp-up period representing an optimistic ramp-up scenario.
EPA received comments from biofuels producers stating that production projections we receive from companies should be used as the basis for the mean value of any projected production range. They argue that EPA should defer to the technical expertise of the cellulosic biofuel manufacturers who provide these projections, and that it is inappropriate to base the low end of the range on previous production data. EPA understands that the volume projections provided by companies included in our projection are intended to represent the companies' expectations for production, rather than the high end of a potential production range. We also acknowledge the technical expertise of these companies and the significant amount of investment that has gone into the development of these biofuel production processes as they have progressed from R&D through demonstration and pilot scale in preparation for the first commercial scale facilities. While acknowledging these facts, we do not believe it would be appropriate to ignore the history of the cellulosic biofuel industry. Each year since 2010, EPA has gathered information, including volume production projections, from companies with the potential to produce cellulosic biofuel. Each of these companies supported these projections with successful pilot and demonstration scale facilities as well as other supporting documentation. In each of these cases the companies were unable to meet their own volume projections, and in many cases were unable to produce any RIN-generating cellulosic biofuel.
The inability of cellulosic biofuel producers in previous years to achieve their projection production targets does not provide a sufficient basis for completely discounting production of cellulosic biofuel in future years, either for these same facilities that were previously unable to achieve their target projections or from new facilities expected to start-up in 2015 or 2016. Each of these companies is an individual case, with their own production technologies, construction and operations staffs, and financial situations, and we do not believe it is appropriate to dismiss all future potential cellulosic biofuel production because of the failure of several facilities to successfully operate at commercial scale. We do believe it strongly suggests that we should view the individual company projections as something other than the most likely outcomes. In order to take a “neutral aim at accuracy” in projecting cellulosic biofuel production volumes, as directed by the United States Court of Appeals for the D.C. Circuit, we have decided to treat these company projections as the high end of a potential production range unless this volume exceeds the volume calculated using our six-month straight-line ramp-up period methodology, suggesting that these company projections are unreasonably high. We will continue to monitor the progress and experience of the cellulosic biofuel industry and may adjust our approach as appropriate in light of additional experience.
EPA also received comments claiming that the proposed cellulosic biofuel volumes were unreasonably high. These commenters generally claimed that in light of the inability of cellulosic biofuel companies to achieve their projected production volumes, start-up dates, and ramp-up schedules in previous years the only reasonable basis for projecting future production volumes was historical production data. They suggested that EPA should project future production volumes based solely on available cellulosic RIN generation data from previous months. EPA believes this would be inconsistent with our charge to project available cellulosic biofuel volume by taking a neutral aim at accuracy. Adopting such an approach would effectively mean ignoring the potential for facilities that have not generated RINs during the historical time period used for the basis of our future projection to contribute significant volumes in the future. This would not only be inconsistent with our expectations for an industry that has shown substantial growth over the last several years, but also with congressional intent to provide incentives for the rapid expansion of the cellulosic biofuel industry. Most importantly, a comparison of the results of the method suggested by these commenters for the cellulosic biofuel standard in 2015 (90 million ethanol-equivalent gallons) and those proposed by EPA (106 million ethanol-equivalent gallons) to the volume that would be expected to be produced in 2015 using a conservative extrapolation of the monthly average cellulosic biofuel RIN generation observed in the first nine months of 2015 over the remaining three months (118 million gallons) shows this suggested method to be inappropriately conservative.
We believe our range of projected production volumes for each company represents the range of what is likely to actually happen for each company. A brief overview of each of the companies we believe will produce cellulosic biofuel and make it commercially available in 2015 or 2016 can be found in a memorandum to the docket.
After establishing a projected production range for each facility (or group of facilities for CNG/LNG producers), we must then determine a method for using these projected production ranges to project the volume of cellulosic biofuel most likely to be produced by the cellulosic biofuel industry as a whole in 2015. As discussed above, the high and the low end of the range for each company represents values such that it is possible but unlikely that actual volumes would fall outside of those ranges. At present, data do not exist to allow EPA to develop a unique production probability distribution for each company based on the available information, as some commenters suggested. Even if EPA were able to undertake such a task there is no evidence that the distributions we developed would necessarily be more accurate than a standardized distribution curve as the cellulosic biofuel industry is still in its infancy and there is a high degree of uncertainty
Rather than attempting to develop a unique probability distribution curve that represents likely cellulosic biofuel production for each company, EPA has instead separated the list of potential cellulosic biofuel producers into several groups with similar characteristics and projected the likely production from each of these groups. In our proposed rule we separated all of the potential cellulosic biofuel producers into two groups; those who have already achieved consistent commercial-scale production and those who have not. EPA received comments on our proposed rule that biogas producers should be treated differently than liquid biofuel producers since there was very little technology risk associated with the production and collection of biogas. We believe these comments are valid, and that the available data support using a percentile value to projected production from biogas facilities that differs from the value used for liquid biofuel producers. For this final rule we have used the 50th and 75th percentile values within the projected ranges to project likely cellulosic biofuel production from new and consistently producing facilities producing CNG/LNG from biogas.
We continue to believe that grouping the potential cellulosic biofuel producers using the criteria of whether or not they have achieved consistent commercial-scale production is appropriate for the purposes of projecting a likely production volume. While each of these groupings contains a diverse set of companies with their own production technologies and challenges, we believe there is sufficient commonality in the challenges related to the funding, construction, commissioning, and start-up of commercial-scale cellulosic biofuel facilities to justify aggregating these company projections into a single group for the purposes of projecting the most likely production volume of cellulosic biofuel. The challenges new production facilities face are also significantly different than those of facilities ramping up production volumes to the facility capacity and maintaining consistent production.
After separating the companies into these four groups (liquid cellulosic biofuel producers with and without consistent production and biogas producers with and without consistent production) we then summed the low and high ends of each of the ranges for each individual company (or group of companies for CNG/LNG producers) within the group to calculate an aggregate projected production range for each group of companies. The ranges for each group of companies are shown in Tables IV.E-2 through IV.E-4 below.
Because the cellulosic biofuel industry is still in its infancy and it is therefore not possible to predict with any degree of certainty the precise production volume each individual company will achieve, we believe that it would not be appropriate to choose a specific value within the projected range for each individual company/source. We believe it is more appropriate to identify a specific value within the aggregated ranges from Tables IV.E-2 and IV.E-4 that best reflects the likely production volume for each group of companies. For liquid cellulosic biofuel producers that have not yet achieved consistent commercial-scale production (Table IV.E-2) we are finalizing the use of the 25th percentile of the projected production range. This does not mean, as some commenters suggested, that we expect these facilities to operate at 25% of their nameplate, but rather that we expect that this group of facilities will produce a volume of cellulosic biofuel at the 25th percentile of the projected range. We note again that the high end of the range for each company, which were used to calculate the high end of the range for the group of companies, is significantly lower than the nameplate capacity of each facility, in some cases dramatically so, based on the expected start-up date of the facility. We believe this volume is appropriate as, in addition to the uncertainties listed above, there is also significant technology risk as these facilities attempt to operate their technologies at commercial scale. In the early years of the cellulosic biofuel industry several companies, including Cello Energy, Range Fuels, and KiOR experienced significant technical difficulties in scaling up their technologies and were able to produce little, if any, volumes of cellulosic biofuels. More recently, facilities owned and operated by Abengoa and Poet-DSM have also experienced unexpected challenges that resulted in commercial scale production being delayed. It is necessary to consider this history when projecting production volumes from companies who have not yet achieved consistent production at commercial scale.
For the group of liquid cellulosic biofuel producers that have achieved consistent commercial-scale production (Table IV.E-3) we are projecting the available volume produced by these facilities at the mid-point (50th percentile) of the projected range. We believe that this point accounts for the uncertainty related to the scale-up of production from the volume produced in the previous 12 months (through September 2015) as well as other uncertainties related to the generation of RINs such as documenting that the fuel is used as transportation fuel, heating oil, or jet fuel. As stated above, this does not mean that we anticipate that each of these facilities within each group will produce at the 50th percentile of the projected range over the final 3 months of 2015, but rather that as a group the 50th percentile is a realistic projections for this group of companies. We believe this methodology accounts for the fact that some individual company may be able to deliver the volume of cellulosic biofuel they expect and produce at or near the high end of the range, while others may experience challenges and produce closer to the low end of the range.
Finally, EPA has projected production for companies generating cellulosic biofuel RINs from biogas at the 50th percentile for those facilities that have not yet generated cellulosic biofuel RINs and at the 75th percentile for those facilities that have achieved consistent commercial scale production. In our proposed rule we projected volumes from these facilities at the 25th and 50th percentile of the projected production ranges respectively, consistent with the way we projected likely production from liquid cellulosic biofuel producers. We received comments that our methodology under-estimated the potential for the generation of cellulosic RINs from biogas, with some commenters claiming that the mature state of the technology required to produce and/or collect biogas and clean it to pipeline quality justified a using a higher percentile to projected production from these facilities. In our proposed rule EPA noted the differences in the status of the technologies used to produce liquid cellulosic biofuels and cellulosic biofuel from biogas. We nevertheless proposed to use the same percentiles for both liquid cellulosic biofuels and cellulosic biofuel from biogas due to uncertainties related to the ability of the biogas production facilities to demonstrate the use of the biogas as transportation fuel and a lack of RIN generation data to compare to previous projections on the part of many of the biogas facilities. After reviewing the fuel production and RIN generation history of these facilities, and with these comments in mind, EPA has decided to use higher percentile values to project likely production from cellulosic biogas producers as compared to liquid cellulosic biofuel producers.
As noted in our proposed rule, EPA anticipates that if the same methodology is used in future years that as cellulosic biofuel companies successfully achieve commercial scale production, application of this methodology will appropriately generate increasing volume projections, both for the individual companies and for the industry as a whole. This will happen in two ways. First, as companies successfully produce cellulosic biofuel the low end of the range (which is based on the most recent 12 months of production for which data are available) will increase. Second, we would use the higher percentile values for all companies who have achieved consistent commercial-scale production. If merited by the available data, we will also consider using a higher (or lower) percentile for both new facilities and facilities that have already achieved consistent commercial-scale production. As new pathways for the production of cellulosic biofuel are approved, we will also consider volumes produced using these pathways in our projections.
The final step in projecting the potentially available volume of cellulosic biofuel in 2015 is to combine the volumes of cellulosic biofuel actually produced in months for which data is available with the projected production volumes for the remaining months of 2015. This is shown in Table IV.E-6 below. For 2015 we are finalizing a cellulosic biofuel standard of 123 million gallons.
To project the volume of potentially available cellulosic biofuel in 2016 we are using a methodology very similar to the methodology used for projecting cellulosic biofuel production in 2015 for months in which actual production data are not available. The only difference is that in 2016 a scaling factor is not used in calculating the low end of the projected ranges, as we are projecting production over the entire year rather than for only 3 months. For 2016 we separated the list of potential producers of cellulosic biofuel into four groups according to whether they are producing liquid cellulosic biofuel or CNG/LNG from biogas and the production history of the facilities (See Table IV.F-1 through Table IV.F-3). We next defined a range of likely production volumes for each group of potential cellulosic biofuel producers. The low end of the range for each group of producers reflects actual production data over the last 12 months for which data is available. This is the same approach used to establish the low end of the range for each of the potential cellulosic biofuel producers in 2015.
To calculate the high end of the projected production range for each group of companies we considered each company individually (with the exception of the CNG/LNG producers) and used the same methodology in 2016 as for the months in 2015 for which actual past production data was not available (this methodology is covered in further detail in Section IV.E above). The high end of the range for each company within each group was added together to calculate the high end of the projected production range for that group.
After defining likely production ranges for each group of companies we projected a likely production volume from each group of companies for 2016. We used the same percentile values to projected a production volume within the established ranges 2016 as we did in 2015; the 50th and 25th percentiles respectively for liquid cellulosic biofuel producers with and without a history of consistent cellulosic biofuel production, and the 75th and 50th percentiles respectively for producers of CNG/LNG from biogas with and without a history of consistent commercial scale production. These percentile values are discussed in more detail in Section IV.E above.
The final step in projecting the potentially available volume of cellulosic biofuel in 2016 is to combine the volumes of cellulosic biofuel projected to be produced from each of the four groups discussed above (shown in Table IV.F-4 below). For 2016 we are finalizing a cellulosic biofuel volume requirement of 230 million gallons.
On January 25, 2013, the United States Court of Appeals for the District of Columbia Circuit issued its decision concerning a challenge to the 2012 cellulosic biofuel standard.
The renewable fuel standards are expressed as volume percentages and are used by each obligated party to determine their Renewable Volume Obligations (RVO). Since there are four separate standards under the RFS program, there are likewise four separate RVOs applicable to each obligated party. Each standard applies to the sum of all gasoline and diesel produced or imported. The percentage standards are set so that if every obligated party meets the percentages, then the amount of renewable fuel, cellulosic biofuel, biomass-based diesel (BBD), and advanced biofuel used will meet the applicable volumes established in this rule on a nationwide basis.
Sections II, III, and IV provide our rationale and basis for the final volumes for advanced biofuel and total renewable fuel, BBD, and cellulosic biofuel, respectively. The volumes to be used to determine the four final percentage standards are shown in Table V.A-1.
The following formulas are used to calculate the four percentage standards applicable to producers and importers of gasoline and diesel (see 40 CFR 80.1405):
The formulas used in deriving the annual percentage standards rely on estimates of the volumes of gasoline and diesel fuel, for both highway and nonroad uses, which are projected to be used in the year in which the standards will apply. The projected gasoline and diesel volumes provided by EIA include ethanol and biodiesel used in transportation fuel, which are subtracted out as indicated in the equations above. Production of other transportation fuels, such as natural gas, propane, and electricity from fossil fuels, is not currently subject to the standards, and volumes of such fuels are not used in calculating the annual standards. Since under the regulations the standards apply only to producers and importers of gasoline and diesel, these are the transportation fuels used to set the standards, as well as to determine the annual volume obligations of an individual gasoline or diesel producer or importer.
In CAA section 211(o)(9), enacted as part of the Energy Policy Act of 2005, and amended by the Energy Independence and Security Act of 2007, Congress provided a temporary exemption to small refineries
EPA, in consultation with the Department of Energy, evaluates the structural impacts petitioning refineries would likely face in achieving
EPA has granted some exemptions pursuant to this process in the past, and has granted exemptions for three small refineries for 2014. The final applicable percentage standards for 2014 reflect the fact that the gasoline and diesel volumes associated with these three small refineries have been exempted, as provided in the formulas described in the preceding section. However, at this time, no exemptions have been approved for 2015 or 2016, and therefore we have calculated the percentage standards for these years without an adjustment for exempted volumes. As stated in the final rule establishing the 2011 standards, “EPA believes the Act is best interpreted to require issuance of a single annual standard in November that is applicable in the following calendar year, thereby providing advance notice and certainty to obligated parties regarding their regulatory requirements. Periodic revisions to the standards to reflect waivers issued to small refineries or refiners would be inconsistent with the statutory text, and would introduce an undesirable level of uncertainty for obligated parties.”
As specified in the RFS2 final rule,
The levels of the percentage standards would be reduced if Alaska or a U.S. territory chooses to participate in the RFS program, as gasoline and diesel produced in or imported into that state or territory would then be subject to the standard. Neither Alaska nor any U.S. territory has chosen to participate in the RFS program at this time, and thus the value of the related terms in the calculation of the standards is zero.
The values of the variables described above are shown in Table V.B.3-1.
Using
We are finalizing several revisions to the RFS regulations, which are described below. The first revision relates to the definition of terms in Table 1 to 40 CFR 80.1426, which describes approved biofuel production pathways. The second set of revisions addresses annual compliance reporting and associated attest reporting deadlines.
In the March 2010 RFS rule (75 FR 14670), EPA established two pathways for biofuels derived from algal oil to generate D-Code 4 (Biomass-Based Diesel) or 5 (Advanced) RINs. The analyses supporting the pathways approved in the March 2010 RFS rule assumed that algae would be grown photosynthetically (
EPA received several comments in support of these clarifications. EPA also received several comments that suggested these clarifications were not necessary and urged the agency to clarify a number of issues related to the production of algal biofuel using different pathway configurations. Comments also requested the agency expand the interpretation of algae to include all autotrophic microorganisms. These issues are beyond the scope of this rulemaking, which is limited to the proposed regulatory amendments discussed above that clarify the existing algal oil pathways. Companies wishing to produce biofuels from algae grown with a non-photosynthetic stage of growth must apply to EPA for approval of their pathway pursuant to 40 CFR 80.1416.
Based on the comments received and the discussion below, the EPA is finalizing the annual compliance reporting and attest engagement deadlines described in Table VI.B-1. In summary, the EPA is modifying for purposes of the final rule the proposed changes to the 2013 compliance reporting deadline for obligated parties and exporters, and the 2014 and 2015 compliance reporting deadlines for obligated parties. The EPA is also modifying for purposes of the final rule the proposed changes to the 2013 attest engagement reporting deadline for RIN generators, the 2014 attest engagement reporting deadline for RIN generators and third-party auditors, and the 2015 attest engagement reporting deadline for obligated parties. The EPA is finalizing all other compliance and attest engagement reporting deadlines.
Commenters on the proposed due dates for the 2013, 2014, and 2015 RFS annual compliance and attest engagement reports generally supported the EPA's approach to staggering the deadlines between compliance years. However, as one commenter noted, the time between the deadline for 2015 RFS attest engagement reports for obligated parties conflicts with 2016 RFS annual compliance and attest reporting deadlines for obligated parties. The commenter argued that obligated parties rely upon the results of the prior compliance year's attest engagement reports to correct vital information that is needed to accurately determine an obligated party's RVO and RIN balance. Since the proposed deadlines for 2015 attest engagement reporting occurred after the 2016 annual compliance reporting deadline, obligated parties would have been unable to utilize the 2015 attest engagement report to ensure timely, accurate 2016 annual compliance reports. The result of this conflict would have been the unnecessary resubmission of 2016 annual compliance reports by obligated parties to address issues identified in the 2015 attest engagement reports. Additionally, certified public accountants (CPAs) and certified internal auditors (CIAs) would not have been able to rely upon the 2015 attest engagement report for the 2016 attest engagement procedures since the proposed deadlines for 2015 and 2016 attest engagements reports were the same. The commenter noted that six months was too much time between the 2014 and 2015 annual compliance reporting deadlines for obligated parties. (It should be noted that the proposed 2014 and 2015 RFS annual compliance deadlines for obligated parties was only five months apart, not six months.)
While we recognize the concerns raised, due to constraints on the EPA's reporting systems and staff, we are unable to accommodate a faster annual compliance reporting schedule. Additionally, we have concerns that obligated parties may have difficulty complying with a more compressed RFS reporting schedule. Obligated parties have several other EPA fuel program registration and reporting requirements that become effective in 2016 and 2017. These requirements were primarily finalized in the Tier 3 rulemaking and include the registration of all oxygenate blenders (
Concerning obligated parties' attest engagement reporting deadlines, we believe we can move forward the 2015 RFS attest engagement reporting deadline for obligated parties to more appropriately sequence 2015 and 2016 annual compliance and attest engagement reporting deadlines. However, we recognize that there is a limited number of CPAs and CIAs that conduct most of the attest engagement reporting across all of EPA's fuels programs for obligated parties. We are
The EPA is also finalizing an adjustment to the proposed 2013 compliance and attest reporting deadlines to accommodate the 60-day effective date provision of the Congressional Review Act (CRA). As discussed further in Section IX.K in the final rule, this action is deemed a “major rule” as defined by 5 U.S.C 804(2) and therefore subject to the 60-day effective date provision of the CRA. This CRA provision impacts our proposed dates for the 2013 compliance deadline and attest engagement reporting deadline. Therefore, for the 2013 compliance year, we are finalizing the compliance deadline and attest engagement reporting deadline for obligated parties and exporters to be March 1, 2016 or 60 days from publication in the
Although these changes are necessary due to the CRA provision, we believe this extension will provide obligated parties additional time to consider the impact of the final 2014 standards on the manner in which they should comply with 2013 requirements, and to engage in RIN trading transactions for purposes of their 2013 compliance demonstration that will best position them for compliance with 2014 requirements. Additional detail can located in Table VI.B-1 below and Section 9.2 in the Response to Comment document.
We have also decided to provide an additional two-month extension, beyond that which was proposed, for the 2014 obligated party compliance demonstration deadline, The final deadline is August 1, 2016. We received comment suggesting that some parties may have placed undue reliance in their planning for 2014 compliance on proposed levels from November, 2013. Although we believe such parties had adequate notice that the final standards could be higher than proposed, as noted elsewhere in this preamble, we believe that extending the 2014 compliance demonstration deadline will make it easier for them to come into compliance. For example, extending the 2014 obligated party compliance deadline by an additional two months will allow additional time for such parties to engage in necessary RIN transactions. Together with the additional time provided for the 2013 compliance demonstration (which could help certain parties better position themselves for 2014 compliance), and the fact that compliance can be achieved through acquisition of RINs, without the need for capital investments or actual renewable fuel blending, we believe that the final 2014 compliance demonstration deadline is reasonable.
For obligated parties, we are also finalizing the 2013 and 2014 attest engagement reporting deadlines as proposed. However, we are changing the 2015 attest engagement reporting deadline for obligated parties from June 1, 2017 to March 1, 2017. We believe this helps address comments concerned with having the 2015 and 2016 RFS attest engagement reporting deadlines fall on the same day and should allow obligated parties some time to adjust 2016 annual compliance reports based on issues identified in the 2015 attest engagement report.
For RIN generators we are changing the 2013 and 2014 attest engagement reporting deadlines from January 31, 2016 to March 1, 2016. We are also changing the 2014 attest engagement reporting deadline for independent third-party auditors from January 31, 2016 to March 1, 2016. These changes are a result of the 60-day effective date provision of the CRA discussed above.
We are finalizing all other annual compliance and attest engagement reporting deadlines for 2013, 2014, and 2015 for other responsible parties as proposed. The revised annual compliance and attest reporting deadlines for all regulated party categories for the 2013, 2014, and 2015 compliance years are shown below in Table VI.B-1. For the 2016 and subsequent compliance years, the deadlines will be back on track with annual compliance demonstration reports due March 31 and attest engagement reports due June 1 of the year following the compliance year.
The RFS2 regulations contain a provision for renewable fuel producers who use planted crops and crop residue from U.S. agricultural land that relieves them of the individual recordkeeping and reporting requirements concerning the specific land from which their feedstocks were harvested. To enable this approach, EPA established a baseline number of acres for U.S. agricultural land in 2007 (the year of EISA enactment) and determined that as long as this baseline number of acres was not exceeded, it was unlikely that new land outside of the 2007 baseline would be devoted to crop production based on historical trends and economic considerations. We therefore provided that renewable fuel producers using planted crops or crop residue from the U.S. as feedstock in renewable fuel production need not comply with the individual recordkeeping and reporting requirements related to documenting that their feedstocks are renewable biomass, unless EPA determines through one of its annual evaluations that the 2007 baseline acreage of 402 million acres agricultural land has been exceeded.
In the final RFS2 regulations, EPA committed to make an annual finding concerning whether the 2007 baseline amount of U.S. agricultural land has been exceeded in a given year. If the baseline is found to have been exceeded, then producers using U.S. planted crops and crop residue as feedstocks for renewable fuel production would be required to comply with individual recordkeeping and reporting requirements to verify that their feedstocks are renewable biomass.
The Aggregate Compliance methodology provided for the exclusion of acreage enrolled in the Grassland Reserve Program (GRP) and the Wetlands Reserve Program (WRP) from the estimated total U.S. agricultural land. However, the 2014 Farm Bill has terminated the GRP and WRP as of 2013 and USDA established the Agriculture Conservation Easement Program (ACEP) with wetlands and land easement components. The ACEP provides financial and technical assistance to help conserve agricultural lands and wetlands and their related benefits. Under the Agricultural Land Easements component, USDA helps Indian tribes, state and local governments and non-governmental organizations protect working agricultural lands and limit non-agricultural uses of the land. Under the Wetlands Reserve Easements component, USDA helps to restore, protect and enhance enrolled wetlands. The WRP was a voluntary program that offered landowners the opportunity to protect, restore, and enhance wetlands on their property. The GRP was a voluntary conservation program the emphasized support for working grazing operations, enhancement of plant and animal biodiversity, and protection of grassland under threat of conversion to other uses.
USDA and EPA concur that the ACEP-WRE and ACEP-ALE represent a continuation in basic objectives and goals of the original WRP and GRP, although the ACEP-ALE is a bit more expansive that the GRP with respect to eligible land. Therefore it was assumed in this rulemaking that acreage enrolled in the easement programs would represent a reasonable proxy of WRP and GRP acreage. Both Agencies have committed to conduct a more detailed analysis of the new programs for the 2017 RFS Annual Volume Regulation.
Based on data provided by the USDA Farm Service Agency (FSA) and Natural Resources Conservation Service (NRCS), we have estimated that U.S. agricultural land reached approximately 380 million acres in 2013, and thus did not exceed the 2007 baseline acreage. This acreage estimate is based on the same methodology used to set the 2007 baseline acreage for U.S. agricultural land in the RFS2 final rulemaking. Specifically, we started with FSA crop history data for 2013, from which we derived a total estimated acreage of 379,717,296 acres. We then subtracted the amount of land estimated to be participating in the Grasslands Reserve Program (GRP) and Wetlands Reserve Program (WRP) by the end of Fiscal Year 2013, 144,619 acres, to yield an estimate of approximately 380 million acres of U.S. agricultural land in 2013. Note that these programs were still in place in 2013. The USDA data used to make this derivation can be found in the docket to this rule.
Similarly, we have estimated that U.S. agricultural land reached approximately 378 million acres in 2014, and thus did not exceed the 2007 baseline acreage. This acreage estimate is based on the same methodology used to set the 2007 baseline acreage for U.S. agricultural land in the RFS2 final rulemaking, with GRP and WRP data substitution as noted above. Specifically, we started with FSA crop history data for 2014, from which we derived a total estimated acreage of 377,829,781 acres. We then subtracted the amount of land estimated to be participating in the Agriculture Land Easement (ACEP-ALE) and Wetlands Reserve (ACEP-WRE) by the end of Fiscal Year 2014, 143,834 acres, to yield an estimate of approximately 378 million acres of U.S. agricultural land in 2014. The USDA data used to make this derivation can be found in the docket to this rule.
Finally, we have estimated that U.S. agricultural land reached approximately 379 million acres in 2015, and thus did not exceed the 2007 baseline acreage. This acreage estimate is based on the same methodology used to set the 2007 baseline acreage for U.S. agricultural land in the RFS2 final rulemaking, with GRP and WRP data substitution as noted above. Specifically, we started with FSA crop history data for 2015, from which we derived a total estimated acreage of 379,236,620 acres. We then subtracted the Agriculture Land Easement (ACEP-ALE) and Wetlands Reserve (ACEP-WRE) enrolled acres by the end of Fiscal Year 2015, 84,133 acres, to yield an estimate of approximately 379 million acres of U.S. agricultural land in 2015. The USDA data used to make this estimation can be found in the docket to this rule.
On March 15, 2011, EPA issued a notice of receipt of and solicited public comment on a petition for EPA to authorize the use of an aggregate approach for compliance with the
The Government of Canada utilized several types of land use data to demonstrate that the land included in their 124 million acre baseline is cropland, pastureland or land equivalent to U.S. Conservation Reserve Program land that was cleared or cultivated prior to December 19, 2007, and was actively managed or fallow and non-forested on that date (and is therefore RFS2 qualifying land). The total agricultural land in Canada in 2013 is estimated at 119.8 million acres. This total agricultural land area includes 96.3 million acres of cropland and summer fallow, 13.7 million acres of pastureland and 9.8 million acres of agricultural land under conservation practices. This acreage estimate is based on the same methodology used to set the 2007 baseline acreage for Canadian agricultural land in the RFS2 response to petition. The trigger point for further evaluation of the data for subsequent years, provided by Canada, is 121 million acres. The data used to make this calculation can be found in the docket to this rule.
The total agricultural land in Canada in 2014 is estimated at 119.5 million acres. This total agricultural land area includes 96 million acres of cropland and summer fallow, 13.7 million acres of pastureland and 9.8 million acres of agricultural land under conservation practices. This acreage estimate is based on the same methodology used to set the 2007 baseline acreage for Canadian agricultural land in the RFS2 response to petition. The data used to make this calculation can be found in the docket to this rule.
The total agricultural land in Canada in 2015 is estimated at 118.6 million acres. This total agricultural land area includes 94.9 million acres of cropland and summer fallow, 13.9 million acres of pastureland and 9.8 million acres of agricultural land under conservation practices. This acreage estimate is based on the same methodology used to set the 2007 baseline acreage for Canadian agricultural land in the RFS2 response to petition. The data used to make this calculation can be found in the docket to this rule.
Many interested parties participated in the rulemaking process that culminates with this final rule. This process provided opportunity for submitting written public comments following the proposal that we published on June 10, 2015 (80 FR 33100), and we also held a public hearing on June 25, 2015, at which many parties provided both verbal and written testimony. All comments received, both verbal and written, are available in EPA docket EPA-HQ-OAR-2015-0111 and we considered these comments in developing the final rule. Public comments and EPA responses are discussed throughout this preamble and in the accompanying RTC document, which is available in the docket for this action.
This action is an economically significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket. The EPA prepared an analysis of the potential costs associated with this action. This analysis is presented in Section II.I of this preamble.
This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control numbers 2060-0637 and 2060-0640. The final standards would not impose new or different reporting requirements on regulated parties than already exist for the RFS program.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden, or otherwise has a positive economic effect on the small entities subject to the rule.
The small entities directly regulated by the RFS program are small refiners, which are defined at 13 CFR 121.201 as refiners with 1,500 employees or less company-wide. The impacts of the RFS program as a whole on small entities were addressed in the March 26, 2010, RFS2 rulemaking (75 FR 14670), which was a rule that implemented the entire program required by the Energy Independence and Security Act of 2007 (EISA 2007). As such, the Small Business Regulatory Enforcement Fairness Act (SBREFA) panel process that took place prior to the 2010 rule was also for the entire RFS program and looked at impacts on small refiners through 2022.
For the SBREFA process for the March 26, 2010, RFS2 rulemaking, EPA conducted outreach, fact-finding, and analysis of the potential impacts of the program on small refiners which are all described in the Final Regulatory Flexibility Analysis, located in the rulemaking docket (EPA-HQ-OAR-2005-0161). This analysis looked at impacts to all refiners, including small refiners, through the year 2022 and found that the program would not have a significant economic impact on a substantial number of small entities, and that this impact was expected to decrease over time, even as the standards increased. The analysis included a cost-to-sales ratio test, a ratio of the estimated annualized compliance costs to the value of sales per company, for gasoline and/or diesel small refiners subject to the standards. From this test, it was estimated that all directly regulated small entities would have compliance costs that are less than one percent of their sales over the life of the program (75 FR 14862).
We have determined that this final rule will not impose any additional requirements on small entities beyond those already analyzed, since the impacts of this final rule are not greater or fundamentally different than those already considered in the analysis for the March 26, 2010, rule assuming full implementation of the RFS program. As shown above in Tables I-1 and I.A-1 (and discussed further in Sections II and IV), this rule finalizes the 2014, 2015, and 2016 volume requirements for cellulosic biofuel, advanced biofuel, and total renewable fuel at levels significantly below the statutory volume targets. This exercise of EPA's waiver authorities reduces burdens on small entities, as compared to the burdens that
For this final rule, EPA has conducted a screening analysis to assess whether it should make a finding that this action would not have a significant economic impact on a substantial number of small entities. Currently-available information shows that the impact on small entities from implementation of this rule will not be significant. EPA has reviewed and assessed the available information, which suggests that obligated parties, including small entities, are generally able to recover the purchase cost of the RINs necessary for compliance through higher sales prices of the petroleum products they sell than would be expected in the absence of the RFS program.
While the rule will not have a significant economic impact on a substantial number of small entities, there are compliance flexibilities in the program that can help to reduce impacts on small entities. These flexibilities include being able to comply through RIN trading rather than renewable fuel blending, 20% RIN rollover allowance (up to 20% of an obligated party's RVO can be met using previous-year RINs), and deficit carry forward (the ability to carry over a deficit from a given year into the following year, providing that the deficit is satisfied together with the next year's RVO). In the March 26, 2010, final rule, we discussed other potential small entity flexibilities that had been suggested by the SBREFA panel or through comments, but we did not adopt them, in part because we had serious concerns regarding our authority to do so.
Additionally, as we realize that there may be cases in which a small entity experiences hardship beyond the level of assistance afforded by the program flexibilities, the program provides hardship relief provisions for small entities (small refiners), as well as for small refineries.
Given that this final rule would not impose additional requirements on small entities, would decrease burden via a reduction in required volumes as compared to statutory volume targets, would not change the compliance flexibilities currently offered to small entities under the RFS program (including the small refinery hardship provisions we continue to successfully implement), and available information shows that the impact on small entities from implementation of this rule will not be significant, we have therefore concluded that this action would have no net regulatory burden for directly regulated small entities.
This action contains a federal mandate under UMRA, 2 U.S.C. 1531-1538, that may result in expenditures of $100 million or more for state, local and tribal governments, in the aggregate, or the private sector in any one year. Accordingly, the EPA has prepared a written statement required under section 202 of UMRA. The statement is included in the docket for this action, and discussed above in Section II.I. This action implements mandates specifically and explicitly set forth in CAA section 211(o) and, as described in Section II.I, we believe that this action represents the least costly, most cost-effective approach to achieve the statutory requirements of the rule.
This action is not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. This final rule will be implemented at the Federal level and affects transportation fuel refiners, blenders, marketers, distributors, importers, exporters, and renewable fuel producers and importers. Tribal
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it implements specific standards established by Congress in statutes (CAA section 211(o)) and does not concern an environmental health risk or safety risk.
This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This action establishes the required renewable fuel content of the transportation fuel supply for 2014, 2015, and 2016, consistent with the CAA and waiver authorities provided therein. The RFS program and this rule are designed to achieve positive effects on the nation's transportation fuel supply, by increasing energy independence and lowering lifecycle greenhouse gas emissions of transportation fuel.
This rulemaking does not involve technical standards.
The EPA believes that this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations. This final rule does not affect the level of protection provided to human health or the environment by applicable air quality standards. This action does not relax the control measures on sources regulated by the RFS regulations and therefore will not cause emissions increases from these sources.
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).
Statutory authority for this action comes from section 211 of the Clean Air Act, 42 U.S.C. 7545. Additional support for the procedural and compliance related aspects of this final rule come from sections 114, 208, and 301(a) of the Clean Air Act, 42 U.S.C. 7414, 7542, and 7601(a).
Environmental protection, Administrative practice and procedure, Air pollution control, Diesel fuel, Fuel additives, Gasoline, Imports, Oil imports, Petroleum, Renewable fuel.
For the reasons set forth in the preamble, EPA amends 40 CFR part 80 as follows:
42 U.S.C. 7414, 7521, 7542, 7545, and 7601(a).
The additions read as follows:
(a) * * *
(5)
(i) The value of the cellulosic biofuel standard for 2014 shall be 0.019 percent.
(ii) The value of the biomass-based diesel standard for 2014 shall be 1.41 percent.
(iii) The value of the advanced biofuel standard for 2014 shall be 1.51 percent.
(iv) The value of the renewable fuel standard for 2014 shall be 9.19 percent.
(6)
(i) The value of the cellulosic biofuel standard for 2015 shall be 0.069 percent.
(ii) The value of the biomass-based diesel standard for 2015 shall be 1.49 percent.
(iii) The value of the advanced biofuel standard for 2015 shall be 1.62 percent.
(iv) The value of the renewable fuel standard for 2015 shall be 9.52 percent.
(7)
(i) The value of the cellulosic biofuel standard for 2016 shall be 0.128 percent.
(ii) The value of the biomass-based diesel standard for 2016 shall be 1.59 percent.
(iii) The value of the advanced biofuel standard for 2016 shall be 2.01 percent.
(iv) The value of the renewable fuel standard for 2016 shall be 10.10 percent.
(f) * * *
(1) * * *
(a) * * *
(1) * * *
(xiv)(A) For the 2013 compliance year, annual compliance reports shall be submitted no later than March 1, 2016 or 60 days from publication in the
(B) For obligated parties, for the 2014 compliance year, annual compliance reports shall be submitted no later August 1, 2016.
(C) For exporters of renewable fuel, for the 2014 compliance period from January 1, 2014, through September 16, 2014, full annual compliance reports (containing the information specified in paragraphs (a)(1)(i), (ii), (vi), (viii), and (x) of this section) for that period shall be submitted no later than March 1, 2016 or 60 days from publication in the
(D) For obligated parties, for the 2015 compliance year, annual compliance reports shall be submitted no later than December 1, 2016.
The addition and revision read as follows:
(g)(1) For obligated parties and exporters of renewable fuel, for the 2013 compliance year, reports required under this section shall be submitted to the EPA no later than June 1, 2016.
(2) For RIN-generating renewable fuel producers, RIN-generating importers of renewable fuel, and other parties owning RINs, for the 2013 compliance year, reports required under this section shall be submitted to the EPA no later than March 1, 2016 or 60 days from publication in the
(3) For obligated parties, for the 2014 compliance year, reports required under this section shall be submitted to the EPA no later than December 1, 2016.
(4) For exporters of renewable fuel, for the 2014 compliance period from January 1, 2014, through September 16, 2014, full reports for that period required under this section shall be submitted no later than June 1, 2016.
(5) For RIN-generating renewable fuel producers, RIN-generating importers of renewable fuel, and other parties owning RINs, for the 2014 compliance year, reports required under this section shall be submitted to the EPA no later than March 1, 2016 or 60 days from publication in the
(6) For obligated parties, for the 2015 compliance year, reports required under this section shall be submitted to the EPA no later than March 1, 2017.
(i) * * *
(3)
Federal Trade Commission.
Final rule.
In this document, the Commission adopts amendments to the Telemarketing Sales Rule (“TSR” or “Rule”). These amendments define and prohibit the use of certain payment methods in all telemarketing transactions; expand the scope of the advance fee ban for recovery services; and clarify certain provisions of the Rule. The amendments are necessary to protect consumers from deceptive or abusive practices in telemarketing.
Effective on February 12, 2016, except for amendatory instructions 4.b., 4.c., 4.d., and 6, which are effective on June 13, 2016.
This document is available on the Internet at the Commission's Web site at
Karen S. Hobbs or Craig Tregillus, Attorneys, Division of Marketing Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW., Room CC-8528, Washington, DC 20580, (202) 326-3587 or 2970.
This document states the basis and purpose for the Commission's decision to adopt amendments to the TSR that were proposed and published for public comment in the
Beginning on February 12, 2016, sellers and telemarketers will be required to comply with the amended TSR requirements, except for § 310.4(a)(9) and (10), the prohibitions against accepting remotely created payment orders, cash-to-cash money transfers, and cash reload mechanisms, which will be effective on June 13, 2016.
Enacted in 1994, the Telemarketing and Consumer Fraud and Abuse Prevention Act (“Telemarketing Act” or “Act”)
Pursuant to the Act's directive, the Commission promulgated the original TSR in 1995 and subsequently amended it in 2003 and again in 2008 and 2010 to add, among other things, provisions establishing the National Do Not Call Registry and addressing the use of pre-recorded messages and debt relief offers.
The TSR is fundamentally an anti-fraud rule that protects consumers from deceptive and abusive telemarketing practices. First, the Rule requires telemarketers to make certain disclosures to consumers, and it prohibits material misrepresentations.
In addition, the TSR prohibits misrepresentations about, among other things, the cost and quantity of the offered goods or services. 16 CFR 310.3(a)(2). It also prohibits making false or misleading statements to induce any person to pay for goods or services or to induce charitable contributions. 16 CFR 310.3(a)(4).
The TSR also protects consumers from unwanted telephone calls. With narrow exceptions, it prohibits telemarketers from calling consumers whose numbers are on the National Do Not Call Registry or who have specifically requested not to receive calls from a particular entity.
On July 9, 2013, the Commission proposed to amend the TSR to enhance its anti-fraud protections, as well as to clarify amendments that apply primarily, though not exclusively, to the provisions restricting unwanted calls. The Commission's Notice of Proposed Rulemaking (“NPRM”) detailed the proposed amendments to the TSR (“proposed Rule”). The subsections I.B.1 and I.B.2 below describe the Commission's proposal with respect to its anti-fraud amendments, which would:
1. Define and prohibit the use of four types of payment methods by telemarketers and sellers: “remotely created check,” “remotely created payment order,” “cash-to-cash money transfer,” and “cash reload mechanism.”
2. Expand the prohibition against advanced fees for recovery services (now limited to recovery of losses sustained in prior telemarketing transactions) to include recovery of losses in any previous transaction.
Section II sets forth the Commission's analysis of the comments received on the proposal, any modifications to the proposed language, and reasons for adopting the provisions of the Final Rule.
The clarifying amendments, discussed in Section III, serve three main functions. First, they specify that a description of the goods or services purchased must be included in the verification recording of a consumer's agreement to purchase them. Second, they clarify that the business-to-business exemption extends only to calls to induce a sale to or contribution from a business entity, and not to calls to induce sales to or contributions from individuals employed by the business. Finally, these amendments address the TSR's Do Not Call requirements to:
• State expressly that a seller or telemarketer bears the burden of demonstrating that the seller has an existing business relationship with, or has obtained an express written agreement from, a person whose number is listed on the Do Not Call Registry;
• Illustrate the types of impermissible burdens that deny or interfere with a consumer's right to be placed on a seller's or telemarketer's entity-specific do-not-call list;
• Specify that a seller's or telemarketer's failure to obtain the information necessary to honor a consumer's request to be placed on a seller's entity-specific do-not-call list pursuant to § 310.4(b)(1)(ii) disqualifies it from relying on the safe harbor for isolated or inadvertent violations in § 310.4(b)(3); and
• Emphasize that the prohibition against sellers sharing the cost of Do Not Call Registry fees, which are non-transferrable, is absolute.
The NPRM proposed to prohibit the use of four types of “novel payment methods” in telemarketing, namely: Remotely created checks, remotely created payment orders, cash-to-cash money transfers, and cash reload mechanisms.
Traditional checks require the signature of the account holder and instruct a financial institution to pay money from the account of the check writer (“payor”) to the check recipient (“payee”). As originally defined in the NPRM, a remotely created check (“RCC”) is a type of check which is created by the payee (typically a merchant, seller, or telemarketer) using the consumer's personal and financial account information and which is not actually signed by the payor.
Electronic payment alternatives to remotely created checks and remotely created payment orders include conventional payment methods, such as Automated Clearinghouse (“ACH”)
Likewise, the payment card networks, such as American Express, Discover, MasterCard, and Visa, impose on participants (
Visa monitors the total volume of US Domestic Interchange, International Interchange, and Chargebacks for a single Merchant Outlet and identifies US Merchants that experience all of the following activity levels during any month:
• 100 or more interchange transactions
• 100 or more Chargebacks
• A 1% or higher ratio of overall Chargeback-to-Interchange volume
Visa, U.S.A,
In contrast to the transactions processed by the ACH and payment card networks, remotely created checks and remotely created payment orders are not subject to such centralized and systemic monitoring. This is due to the decentralized nature of the check clearing system and the inability of banks to distinguish these items from other checks deposited for clearing.
In addition to these operational differences between conventional and novel payment mechanisms, different laws govern each type of payment. As described in detail in section II.A.3.a(3) below, electronic fund transfers such as ACH debits and traditional debit card transactions are governed by Regulation E and the EFTA, which provide consumers with specific rights, including liability limits for unauthorized transactions, the right to a prompt re-credit of funds, specified deadlines for completing investigations of unauthorized transactions, and the right to notification of the results of such investigations.
Credit card transactions also are governed by federal law—Regulation Z and the Truth in Lending Act (“TILA”).
In contrast, remotely created checks are governed principally by Articles 3 and 4 of the Uniform Commercial Code (“UCC”), a series of state laws applicable to negotiable instruments and commercial contracts.
Unscrupulous telemarketers use remotely created checks and remotely created payment orders to exploit vulnerabilities in the check clearing system, enabling them to siphon “hundreds of millions of dollars” in telemarketing transactions from consumers' bank accounts.
Money transfer providers enable individuals to send (or “remit”) money quickly and conveniently to distant friends and family, using a network of agents in various locations in the U.S. and abroad. As used in the NPRM and this Statement of Basis and Purpose (“SBP”), the term “cash-to-cash money transfer” describes a specific type of money transfer in which a consumer brings cash or currency to a money transfer provider that transfers the value to another person who can pick up cash in person.
As the NPRM described, the perpetrators of telemarketing scams frequently instruct consumers to use cash-to-cash money transfers because this method of payment is a fast way to anonymously and irrevocably extract money from the victims of fraud. Once a cash-to-cash money transfer is picked up, there is no recourse for the consumer to obtain a refund after the fraud is discovered. Cash-to-cash transfers to locations outside of the U.S. are governed by the Remittance Transfer Rule (“Remittance Rule”), part of the EFTA and Regulation E. Among other things, the Remittance Rule mandates disclosures to customers of money transfer providers, error resolution for mistakes, limited cancellation rights, and other protections.
Cash reload mechanisms are similarly problematic. Cash reload mechanisms act as a virtual deposit slip for consumers to load funds onto a GPR card without a bank intermediary. A consumer simply pays cash, plus a small fee, to a retailer that sells cash reload mechanisms, such as MoneyPaks, Vanilla Reloads, or Reloadit packs. In exchange, the consumer receives a unique access or personal identification number (“PIN”) authorization code. The consumer can use the PIN code over the telephone or Internet to transfer the funds onto any existing GPR card within the same prepaid network, apply the funds to a “digital wallet” with a payment intermediary (
Like remotely created checks and payment orders, cash-to-cash money transfers and cash reload mechanisms are categorized herein as “novel” telemarketing payment methods because they lack the same error resolution rights and liability limits provided by the TILA and Regulation Z (for credit card payments) or the EFTA and Regulation E (for electronic fund transfers, ACH debits, and traditional debit card transactions). Thus, the use of cash-to-cash money transfers and cash reload mechanisms expose consumers to the risk of unrecoverable losses from telemarketing fraud. Because it appeared from the Commission's law enforcement experience that all these novel payment methods are used almost exclusively by perpetrators of telemarketing fraud, who typically ignore the TSR's “express verifiable authorization” requirement, the NPRM proposed to prohibit their use in all telemarketing transactions.
Telemarketers pitching “recovery services” contact victims of prior scams promising to recover the money they lost or the prize or merchandise they never received, in exchange for a fee paid in advance. Once the fee is paid, consumers rarely receive any benefit from the promised recovery services. To protect consumers from this abusive practice, § 310.4(a)(3) of the TSR prohibits any telemarketer or seller from requesting or receiving payment for recovery services for losses in a previous telemarketing transaction “until seven (7) business days after such money or other item is delivered to that person.” The Commission is eliminating the requirement that the prior loss was the result of a telemarketing transaction. This will ensure that consumers who have incurred fraud losses in non-telemarketing transactions receive the same protection against recovery services fraud.
The NPRM also proposed a number of technical amendments to the TSR that are designed to clarify existing provisions, as noted in the introduction. They are discussed fully in section III.
In response to the NPRM, the Commission received more than 40 comments representing the views of state and federal agencies,
The Commission has carefully reviewed and analyzed the entire record developed in this proceeding.
• Prohibiting the use of remotely created payment orders in outbound and inbound telemarketing transactions;
○ Adopting a modified definition of the term “remotely created payment order” that broadly includes checks (including “remotely created checks”) and payments that are: (1) Created by the payee; and (2) sent through the check clearing system;
○ Eliminating the proposed definition of the term “remotely created check;”
• Prohibiting the use of cash-to-cash money transfers and cash reload mechanisms in outbound and inbound telemarketing transactions;
○ Adopting the proposed definition of “cash-to-cash money transfer;”
○ Adopting a revised definition of the term “cash reload mechanism” to clarify the exclusion of swipe reload methods of loading funds to GPR cards; and
• Expanding the advance fee ban on recovery services to include recovery of losses incurred in previous telemarketing and non-telemarketing transactions.
Based on its review of the entire record, the Commission concludes that the use of remotely created checks and remotely created payment orders in telemarketing is an abusive practice. In reaching this conclusion, the Commission has applied the unfairness analysis set forth in Section 5(n) of the FTC Act,
Numerous commenters, including members of the financial services industry, a federal credit union, small businesses, an academic, consumer advocacy groups, individual consumers, staff from federal agencies, and Offices of Attorneys General in 24 states and the District of Columbia supported the prohibition on the use of remotely created checks and remotely created payment orders in telemarketing transactions.
In general, commenters in support of the prohibition argued that these payment methods are highly susceptible to fraud in telemarketing and cause significant harm to consumers in the form of unauthorized and fraudulent withdrawals from their financial accounts.
Several commenters emphasized that consumers who provide their account numbers to a telemarketer have no effective control over how that payment is processed, little understanding of the different levels of protection afforded different types of payments, and no realization that the information they provide can be used to initiate additional unauthorized debits.
Virtually all of the commenters in support of the prohibition focused on the harm inflicted on consumers when unauthorized and fraudulent debits are withdrawn using remotely created checks and remotely created payment orders.
Two commenters responded to the Commission's specific request for comment regarding the proposed definitions of remotely created check and remotely created payment order by proposing discrete changes that would eliminate the requirement that the check or payment order be “unsigned.”
Several commenters supporting the proposed Rule urged the Commission to expand the prohibition on remotely created checks and remotely created payment orders to non-telemarketing transactions.
Some commenters also emphasized the essential assistance provided by payment processors and merchant banks to telemarketers and sellers that use remotely created checks and remotely created payment orders to debit consumer accounts without authorization.
In stark contrast to the 1995 rulemaking proceedings in which a
While many commenters challenged the FTC's assertion that the use of these payment methods in telemarketing causes or is likely to cause substantial harm to consumers,
The commenters in opposition took issue with other aspects of the unfairness analysis the Commission articulated in the NPRM.
At least one commenter argued that the Commission failed to demonstrate that remotely created payment orders, themselves, caused unavoidable harm to consumers.
Most commenters, however, aimed their critique at the final cost-benefit prong of the Commission's unfairness analysis. These commenters expressed the view that the harm, if any, inflicted on consumers is outweighed by the benefits of using remotely created checks and remotely created payment orders in telemarketing transactions.
Some commenters opposing the prohibition offered alternatives to the Commission's proposal. These suggestions included voluntary or mandatory reporting of remotely created check and remotely created payment order return rates to the Commission by telemarketers or their non-depository payment processors;
In the context of TSR rulemaking proceedings, the Commission has determined to apply the unfairness test to evaluate whether certain acts and practices qualify as “other abusive telemarketing acts or practices”
The rulemaking record demonstrates the persistent, ongoing, and substantial harm caused by the use of remotely created checks and remotely created payment orders in telemarketing transactions. For nearly two decades, the Commission and its state and federal law enforcement partners have used every available tool at their disposal to combat the abuse of remotely created checks in unlawful telemarketing transactions. In many of these cases, the Commission has sought and courts have granted extraordinary equitable and monetary relief, including
States have brought additional cases against telemarketers and sellers that used remotely created checks to withdraw money from consumer bank accounts without authorization.
In the past two years alone, the Commission halted three separate telemarketing operations that were charged with using remotely created checks or remotely created payment orders to defraud thousands of consumers out of tens of millions of dollars.
In March 2014, the Commission sued the perpetrators of a similar scheme targeting senior citizens: First Consumers, LLC, its principals, and related entities. The Commission charged the defendants with cold-calling tens of thousands of seniors claiming to sell fraud protection, legal protection, and pharmaceutical benefit services. In some instances, the telemarketers who carried out the fraud impersonated government and bank officials, and enticed consumers to disclose their confidential bank account information. From 2010 through 2013, the defendants used consumers' bank account information to create and deposit $18,856,360.56 in remotely created checks at various banks—$8,122,104.75 of which were returned by consumers or their banks.
In September 2013, the Commission sued AFD Advisors and its principal, Fawaz Sebai, for operating a telemarketing enterprise that allegedly pitched a prescription drug discount card that, victims were told, would provide substantially discounted or even free prescription drugs.
The Commission's record of law enforcement cases amply demonstrates that the harm resulting from the use of remotely created checks and remotely created payment orders in telemarketing is significant.
Other
In another case,
Even when consumers can obtain reversals of the original transactions, significant consumer injury also results from collateral consequences stemming from the unauthorized bank debit, such as overdraft or NSF fees. For example, one consumer victimized by the fake IRS refund pitch used by the defendants in
Still other consumers simply never dispute such transactions with their bank in the first place.
Even the most aggressive and highly coordinated law enforcement cases have not been able to make consumer victims whole.
Operational weaknesses in the check clearing system incentivize unscrupulous telemarketers to use remotely created checks and remotely created payment orders to initiate unauthorized and fraudulent debits to consumer accounts.
Comments from both supporters and opponents of the amendment agreed that the banking system lacks the ability to detect and distinguish remotely created checks and remotely created payment orders from other checks flowing through the check clearing system. To address this problem, some commenters opposed to the proposal advocated the use of a unique MICR identifier for remotely created checks. First Data suggested that “[b]anks can simply change the file formats used to send remotely created check transactions to the paying bank by adding an indicator field.”
Such proposals for ways to separately identify remotely created checks have been debated for at least the past decade, however, and there is nothing in the record to indicate that there will be a solution to the problem in the reasonably foreseeable future. Prior efforts to modify the MICR line have failed. In 2005, the Board of Governors of the Federal Reserve (“Federal Reserve”) found that “without broad support for such a rule, and in light of the impracticalities of enforcement, the Board has determined not to pursue a MICR identifier for remotely created checks.”
The decentralized nature of the check clearing system further compounds the problem of monitoring remotely created checks and remotely created payment orders.
To counteract these deficiencies, some commenters suggested certain voluntary or mandatory reporting measures and regimes.
The record amply demonstrates that perpetrators of telemarketing fraud exploit the weaknesses of the check clearing system to avoid detection. The Commission has sued telemarketers that relied extensively on remotely created checks and remotely created payment orders to debit the accounts of consumers. In recent cases, the defendants allegedly debited the accounts of consumers with whom they have never spoken; consumers who suffer from dementia; and consumers who felt pressured or tricked into providing their bank account information by telemarketer claims about important health care benefits, Medicare, or other products and services.
The record also lays bare the effect of the potential financial incentives that may encourage unscrupulous payment processors to offer perpetrators of telemarketing fraud these two payment methods that afford the least amount of oversight and transaction monitoring.
The rulemaking record confirms the existence and harmful effect of the significant operational weaknesses within the check clearing system that incentivize perpetrators of telemarketing fraud to exploit remotely created checks and remotely created payment orders to siphon money from the bank accounts of their victims. Once deposited into the check clearing system, banks cannot distinguish remotely created checks and remotely created payment orders from traditional checks, making it impossible to monitor and halt fraudulent transaction activity. The likelihood of any future implementation of a unique MICR identifier or other method for tracking remotely created checks and remotely created payment orders is far from certain.
The significant harm to consumers resulting from the operational weaknesses of the check clearing system (when used in telemarketing transactions) is exacerbated by differences in the laws and regulations governing conventional payment methods and novel payment methods.
Under Regulation Z, a consumer has no liability for unauthorized credit card transactions conducted over the telephone—so-called “card not present” transactions.
By contrast, remotely created checks and remotely created payment orders are governed by UCC protections.
Unlike Regulation E, however, according to commenters who support the amendment, these provisions of the UCC provide no legally mandated error resolution procedure or specific timeframes for enforcing the limits on liability under the UCC.
Unlike the dedicated timeframes under Regulation E, the UCC also permits banks to define (and significantly shorten) the standard by which “reasonable promptness” will be measured.
The ABA posits that, when combined with Regulation CC and Operating Circular 3, such “differences in the details and the technical legal process between the consumer protections for [unauthorized] check transactions and those for credit and debit cards and ACH transactions” do not result in different outcomes for consumers.
For the reasons discussed above, the Commission finds that the regulatory framework applicable to remotely created checks, including provisions under the UCC pertaining to unauthorized and fraudulent checks, which may be varied by agreement, are more limited than those provided under Regulation E and the EFTA or Regulation Z and the TILA. This finding applies equally to remotely created payment orders, which commenters agreed are indistinguishable from remotely created checks and, therefore, are handled by banks in the same manner.
Finally, the greater burdens on consumers in recovering unauthorized and fraudulent withdrawals made by remotely created checks and remotely created payment orders are known to fraudulent merchants and create a strong incentive for them to use these payment methods. The record includes examples of payment processors actively marketing remotely created check and remotely created payment order processing services for the purpose of evading the stricter consumer protection requirements of ACH debits and credit card transactions.
Thus, the Commission is persuaded that the protections available to consumers who have been defrauded by telemarketers through the use of remotely created checks are substantially less robust than the protections afforded by conventional payment systems, and that con-artists exploit these weaknesses. The UCC provides no legally mandated error resolution procedure, no recredit right, and no specific timeframes for enforcing its zero liability rule, thereby abandoning a consumer to choose between accepting an unauthorized debit or suing her bank. These deficiencies, in combination with those of the check clearing system to detect and halt fraud, create powerful incentives that attract fraudulent sellers, telemarketers and their payment processors seeking to profit from unauthorized and fraudulent debits from consumers' bank accounts that go unnoticed or unrecovered.
Having determined that the use of remotely created checks and remotely created payment orders in telemarketing causes substantial injury, the next inquiry is whether consumers can avoid the injury. The extent to which a consumer can reasonably avoid injury is examined, in part, by analyzing whether the consumer can make an informed choice. In this context, the Unfairness Statement articulates how certain types of sales techniques may prevent consumers from effectively making their own decisions, thus necessitating corrective action.
As described in the
Some opponents argued that consumers are in control of whether they give out their bank account information over the telephone to fraudsters.
When fraudulent telemarketers deceive consumers into turning over their bank routing and account information, consumers have no knowledge, let alone choice, as to how the telemarketer will decide to initiate the withdrawal from their bank account.
Moreover, NACHA's “TEL Rule” (abbreviation for telephone-initiated debits) specifically prohibits the use of the ACH Network by
In opposing the amendment and the Commission's unfairness analysis, the ABA submits that the unavoidability of harm must be connected to the cause of that harm. Here, the ABA posits, the unavoidable harm is the telemarketer's initial deception, and not the telemarketer's choice of payment system routing.
The ABA further argues that, unless unavoidability is connected to the telemarketer's deception, the Commission will cast as unavoidable any injury resulting from a merchant's decisions about its operations—a business's choice between two competing debit card networks, for example.
Here, telemarketers' misrepresentations and use of remotely created checks and remotely created payment orders routed through the check clearing system undermine consumers' decisionmaking, thereby causing unavoidable substantial injury. This conclusion is amply buttressed by
The final prong of the Commission's unfairness analysis recognizes that costs and benefits attach to most business practices and requires the Commission to determine whether the harm to consumers from remotely created checks and remotely created payment orders in telemarketing is outweighed by countervailing benefits to consumers or competition.
According to some commenters, the benefits of remotely created checks and remotely created payment orders in telemarketing transactions for consumers with checking accounts include the convenience of paying for impulse purchases of goods and services sold over the telephone when the consumer does not have (or wish to use) another form of payment.
The Commission first considered these benefits of using remotely created checks (referred to as “demand drafts”) in telemarketing transactions during the original 1995 TSR rulemaking proceeding when it proposed to require written authorization for remotely created checks. At that time, few electronic payment methods were available for consumers and businesses. For example, less than 15 percent of all consumer transactions were conducted with credit and debit cards, while checks and cash accounted for the remaining 85 percent of consumer transactions.
Since then, and despite the express verifiable requirements of the TSR, telemarketers and sellers have continued to perpetrate fraud via remotely created checks and remotely created payment orders, resulting in the persistent, ongoing, and substantial harm to consumers.
Studies of consumer payment preferences document the decline in check usage and the rise in the adoption of credit, debit, and prepaid cards, as well as online bill payment options and ACH debits.
In the United States, debit cards have become the most widely used noncash payment instrument, substituting for a significant number of cash, check, and credit card payments at the point of sale and initiated over the telephone or Internet.
Specifically, comments representing the views of financial institutions—including those serving as banks of first deposit (“BOFDs”) for bank customers that purportedly deposit remotely created checks and remotely created payment orders in legitimate telemarketing transactions—failed to provide data or even anecdotal evidence about the number of bank customers that do so.
Similarly, comments from one payment processor speculated that “thousands” of its merchants rely on these payment methods, but failed to report the number of its own merchant clients engaged in telemarketing that use remotely created checks and remotely created payment orders.
As evidence of the widespread legitimate use of remotely created checks, ECCHO provided an estimate that it asserted showed an overall average of 258 unauthorized remotely created check adjustment claims per day, compared to 2.04 million remotely created checks deposited each day.
Second, ECCHO's estimate relied on adjustment claims data for only those items coded as “unauthorized,” which fails to account for the variety of return reason codes used by banks when returning fraudulent remotely created checks and payment orders. Indeed, because there are no universal definitions for return reason codes,
Finally, unauthorized return rates, and even overall return rates, necessarily fail to account for those victims who do not detect the fraudulent withdrawals or who have been thwarted in obtaining a return by the reporting timeframes of the UCC and their bank deposit agreements.
A different objection was raised by commenters asserting that the prohibition would prevent, directly or indirectly, a variety of legitimate transactions conducted over the telephone for which remotely created checks and remotely created payment orders are preferable for businesses, citing insurance premium payments, last-minute credit card bill payments and the collection of debts.
Nevertheless, some commenters anticipate that processors and banks will cease processing all remotely created checks and payment orders because they will fear liability under the TSR's prohibition against assisting and facilitating a Rule violation.
Finally, comments in opposition to the Rule argue that the prohibition will not benefit consumers because perpetrators of fraud will continue to submit remotely created checks and remotely created payment orders without consumers' authorization or simply switch to other payment methods.
In sum, the evidence in the rulemaking record demonstrates that the harm to consumers, in the form of unauthorized and fraudulent charges from remotely created checks and remotely created payment orders in telemarketing transactions vastly outweighs the benefits to consumers or competition. With the advent of payment alternatives offering the same convenience and more consumer protection against unauthorized charges, the past benefits of remotely created checks and remotely created payment orders no longer remain cognizable. Studies on consumer payment preferences confirm consumers' migration to electronic payment alternatives including online bill pay, ACH debits, traditional and prepaid debit cards, and credit cards. In turn, the rulemaking record contains only conclusory assertions that legitimate telemarketers and sellers use or rely on remotely created checks and remotely created payment orders. Moreover, the Commission concludes that a prohibition against the use of remotely created checks and remotely created payment orders in telemarketing will serve to push telemarketers engaged in illegal conduct to use payment methods that are subject to greater monitoring and afford greater protections to consumers. A prohibition also will provide the telemarketing industry with bright lines for compliance with the Rule. These changes will benefit both consumers and competition.
Some commenters argued that a prohibition on remotely created checks and remotely created payment orders will result in the fragmentation of the payment system and amounts to a direct and impermissible regulation of banks, an action exceeding the FTC's jurisdiction. The direct regulation of telemarketing under the TSR, however, is a proper exercise of the Commission's authority to protect consumers from deceptive and abusive telemarketing practices. Indeed, the Telemarketing Act specifically directed the Commission to promulgate and enforce the TSR to address deceptive and abusive telemarketing practices.
Rather than further fragmenting the payment system, the Commission believes that the prohibition will result in clearer compliance obligations for telemarketers and sellers. Under the existing TSR and state law, telemarketers and sellers already are subject to a variety of overlapping restrictions and requirements regarding the acceptance of certain payment methods. For example, telemarketers and sellers must abide by state laws that mandate prior written authorization for remotely created checks or other debits from consumer bank accounts.
Finally, some commenters argued that the Commission's analysis demonstrated a pure policy preference for ACH transactions over checks. They expressed the opinion that, because ACH debits and remotely created checks are both payee-initiated withdrawals from consumer bank accounts, they share the same risk profile in telemarketing. In support of this position, commenters cited FTC cases against telemarketing frauds and payment processors that used ACH debits. As described in section II.A.3 above, the regulatory framework, due diligence, and centralized monitoring of the ACH Network generally provide consumers with more robust consumer protections against fraud. Even with the added safeguards of the ACH Network, NACHA has never permitted the use of ACH debits in outbound telemarketing, due to the substantial risk of fraud in telephone-initiated transactions.
The NPRM proposed adding to the TSR new definitions for “remotely created check” and “remotely created payment order.” As proposed, the definition of remotely created check mirrored the definition used in Regulation CC. The definition of remotely created payment order closely tracked the definition of remotely created check, but was broad enough to encompass electronic payment orders that most closely resemble remotely created checks.
The Commission solicited public comment as to whether the proposed definitions adequately, precisely, and correctly described each payment alternative. In response, the Commission received relevant comments from the Federal Reserve Bank of Atlanta and the CFPB. Both commenters expressed concern that the definitions were too narrow to be effective. Specifically, they emphasized the limitations of including a requirement that the check or payment order be “unsigned,” because a telemarketer or seller could easily apply a “graphical image of a signature” to the signature block of a check or payment order to circumvent the prohibition.
Based on the record evidence, the Commission concludes that there are two defining characteristics of remotely created checks and remotely created payment orders. First, these payments are created or initiated by the payee-merchant, not the payor-consumer. Second, these payments are deposited
In practice, the amended Rule prohibits telemarketers and sellers from accepting any payment order, instruction, or check, whether electronic, imaged, or paper, that is remotely created by the payee
The payments landscape is constantly evolving to meet the needs of consumers and businesses, as evidenced by recent payment innovations, including mobile payments, digital wallets, and virtual currencies. The Rule amendments do not and cannot address the benefits and risks of all existing or future electronic payment alternatives.
To implement the prohibition against the use of remotely created payment orders in outbound telemarketing transactions, the Commission amends § 310.4(a) to add a new paragraph (a)(9). Section 310.4(a)(9) of the amended Rule states that it is an abusive practice for a seller or telemarketer to create or cause to be created, directly or indirectly, a remotely created payment order as payment for goods or services offered or sold through telemarketing or as a charitable contribution solicited or sought through telemarketing.
Section 310.6(b) exempts certain types of inbound telemarketing calls from TSR coverage. For example, inbound calls from consumers in response to general media advertisements are exempt from coverage, with the exception of a few types of products and services.
Only one commenter, First Data, offered specific comments on this aspect of the proposal. First Data suggested that the Commission should adopt an amendment akin to NACHA's TEL Rule that would permit the use of remotely created checks and remotely created payment orders in inbound telemarketing transactions.
For these reasons, the Commission has determined that the prohibitions in § 310.4(a)(9) should apply to both outbound and inbound telemarketing. However, to minimize the burden on sellers and telemarketers that have qualified for the general media and direct mail exemptions from the TSR for inbound telemarketing, the Commission has modified the proposed amendments to § 310.6(b)(5) and (6). The purpose of the modification is to clarify that sellers and telemarketers that comply with the prohibition on the use of remotely created payment orders (including remotely created checks) in inbound telemarketing remain exempt from the TSR's requirements if they otherwise qualify for the general media or direct mail exemptions. Thus, they only are covered by the TSR if they violate the prohibition. Moreover, while non-compliance with one of these prohibitions subjects the violator to a TSR enforcement action for the violation, it does not deprive the violator of its exemption from the other requirements of the TSR.
Money transfer providers enable individuals to send (or “remit”) money quickly and conveniently to distant
As the NPRM described, the perpetrators of telemarketing scams frequently instruct consumers to use cash-to-cash money transfers because this method of payment is a fast way to extract money anonymously and irrevocably from the victims of fraud. As discussed in section I.B.1.a above, cash-to-cash money transfers are: (1) Not subject to the same limits on liability and error resolution procedures as ACH debits and traditional debit cards; (2) not subject to voluntary zero liability protection as provided for certain GPR card transactions; and (3) not subject to the same robust dispute resolution procedures as for credit card payments.
Increasingly, perpetrators of fraud are migrating from using cash-to-cash money transfers to cash reload mechanisms. Cash reload mechanisms are codes or devices that act as a virtual deposit slip for consumers to load funds onto a GPR card without a bank intermediary. A consumer simply pays cash, plus a small fee, to a retailer that sells a cash reload mechanism, such as MoneyPak, Vanilla Reload Network, or Reloadit.
Like remotely created checks, remotely created payment orders, and cash-to-cash money transfers, cash reload mechanisms lack the same dispute resolution rights provided for card-based payments and ACH debits under the TILA and Regulation Z or the EFTA and Regulation E, respectively.
Since the publication of the NPRM, all three major cash reload providers have developed alternatives to PIN-code cash reload mechanisms for adding funds to GPR cards. In July 2014, Green Dot acknowledged the risk that cash reload mechanisms pose to consumers and announced the complete discontinuance of its MoneyPak cash reload product by mid-2015.
Ten commenters, including consumer advocacy groups, staff from state and federal agencies, and a United States senator, supported a prohibition on the use of cash-to-cash money transfers and cash reload mechanisms in telemarketing transactions.
Many commenters agreed that the basic characteristics of cash-to-cash money transfers make them susceptible to abuse in telemarketing transactions. Commenters noted that such transfers provide a quick and convenient means for perpetrators of telemarketing and other frauds to receive money from their victims at locations around the world.
Comments supporting the amendment acknowledged that the amount of actual consumer loss is unknown, but agreed that losses to consumers are significant.
Some commenters suggested that the prohibition on cash-to-cash money transfers should go further to protect consumers. For example, NCLC argued that the Commission should alter the existing knowledge standard for assisting and facilitating violations of the Rule to impose strict liability on money transfer providers.
Several commenters expressed general support for the prohibition against the use of cash reload mechanisms in telemarketing transactions for the same reasons they supported the prohibition on cash-to-cash money transfers.
Like cash-to-cash money transfers, commenters argued, cash reload mechanisms are not used by legitimate businesses as a payment method for telemarketing transactions. Commenters stated that legitimate businesses instead
The Commission received detailed comments opposing the prohibition of cash-to-cash money transfers in telemarketing transactions from The Money Services Roundtable (“TMSRT”), a group of several national non-bank money transmitters.
According to TMSRT, the “vast majority of the millions of transactions completed by TMSRT members each week are not fraudulently induced.”
TMSRT asserted that it would be challenging for money transfer providers to distinguish telemarketing-related money transfers from all other types of transfers. As a result, two comments warned, the prohibition could severely restrict consumer access to international and domestic funds transfers for all consumers, many of whom are unbanked, underserved by mainstream financial services, or do not have credit or debit cards because they are of “limited financial means and seek to avoid the fees associated with traditional banking products.”
In addition, TMSRT questioned whether the prohibition would be effective against the types of fraud-induced money transfers discussed in the NPRM, and argued that it would not deter bad actors. Both the Electronic Transactions Association (“ETA”) and TMSRT expressed concern about third party liability for money transfer providers who accept telemarketing-related money transfers.
TMSRT further argued that the prohibition is unnecessary because money transfer providers already have “taken steps to substantially reduce the amount of fraudulent activity that is occurring.”
The Commission received general comments from InfoCision and ETA regarding the importance of all novel payment methods in telemarketing, and specific comments on the prohibition of cash reload mechanisms in telemarketing from two providers, Green Dot and InComm.
After the close of the comment period, Green Dot submitted written testimony in a hearing held before the United States Senate Special Committee on Aging on July 16, 2014, in which the company announced the discontinuance of “the MoneyPak PIN method of reloading a card” in favor of a “card swipe” reload process.
Before announcing its voluntary discontinuance of MoneyPak, Green Dot's comment expressed support for a prohibition, but suggested the Commission narrow the definition of cash reload mechanism to exclude from coverage those types of payment mechanisms that facilitate bill payment and other money transmission activity “so long as the payment mechanism cannot be used to add funds to a GPR Card.”
InComm and Green Dot each expressed additional concern about the potential liability of a cash reload provider under the TSR's prohibition against assisting and facilitating violations of the Rule.
This amendment proceeding is limited in scope to the direct regulation of those telemarketers and sellers covered by the TSR and subject to the jurisdiction of the FTC. Accordingly, the amendment is limited to the use of cash-to-cash money transfers and cash reload mechanisms by telemarketers and sellers covered by the TSR. The Commission, therefore, cannot extend the prohibition to Internet based transactions, as suggested by some advocates.
The Commission notes that the data cited by the AGO comment include only those complaints in which the consumer reported both the method of payment and the method of initial contact. As a result, these figures exclude a significant number of complaints in which consumers did not report either the method of payment or the method of contact. For example, from January 1, 2011 through
After careful consideration of the entire rulemaking record, the Commission concludes that the use of cash-to-cash money transfers and cash reload mechanisms in telemarketing transactions meets the unfairness test for an abusive telemarketing practice.
The substantial consumer harm resulting from cash-to-cash money transfers and cash reload mechanisms in telemarketing is ongoing and persistent. The rulemaking record confirms that perpetrators of telemarketing fraud—not legitimate telemarketers and sellers—depend on the speed, convenience, anonymity, and irrevocability of these payment methods to siphon millions from consumer victims each year. Furthermore, the record is conspicuously devoid of evidence of the use of such payment mechanisms by legitimate telemarketers or sellers covered by the TSR.
The law enforcement experience of the Commission and the Department of Justice evidences the high risk to consumers and widespread injury caused by fraud-induced money transfers and cash reload mechanisms in telemarketing. As these enforcement cases and alerts show, perpetrators of fraud have employed a variety of means to dupe or pressure consumers into sending cash-to-cash money transfers, including fake foreign lottery or sweepstakes prizes,
In some widespread telemarketing frauds, the agents of cash-to-cash money transfer providers have been complicit in the schemes used to defraud consumers. The U.S. Department of Justice has obtained numerous criminal convictions of corrupt and collusive MoneyGram and Western Union agents that carried out, participated in, or laundered the proceeds from telemarketing fraud.
Law enforcement cases demonstrate that some money transfer providers “have a strong financial incentive to continue facilitating such transactions despite unmistakable signs of fraud.”
In 2008, MoneyGram entered into a similar agreement with 44 states and the District of Columbia to address the high number of money transfers sent by
In October 2009, the Commission reached a separate $18 million settlement with MoneyGram to settle charges that it allowed telemarketers to bilk U.S. consumers out of tens of millions of dollars using its money transfer system.
In 2012, the U.S. Attorney for the Middle District of Pennsylvania filed a criminal case against MoneyGram, alleging that the company willfully disregarded obvious signs that its money transfer network was being used by fraudulent telemarketers and other con-artists, including its own money transfer agents.
Increasingly, law enforcement and consumer advocates have encountered the use of cash reload mechanisms in telemarketing schemes that defraud consumers in a variety of ways.
Existing consumer complaint data, including the complaints collected by the Commission's Consumer Sentinel Network (“CSN”), also indicates the significant injury resulting from fraud-induced money transfers and cash reload mechanisms. The CSN data includes unverified complaints and does not represent a statistical consumer survey. However, it provides important information on the number of consumer complaints reported and the amount of injury reported. The CSN data is consistent with the significant injury documented in law enforcement cases involving fraud-induced money transfers and cash reload mechanisms.
Between January 1, 2012, and December 31, 2014, the CSN database logged 322,850 consumer fraud complaints
The CSN consumer complaint data also is beginning to show the significant injury inflicted when perpetrators of fraud use cash reload mechanisms to siphon money from consumer victims. In 2014, CSN logged 119,100 consumer fraud complaints accounting for $80,860,327 in reported injury in which the victims reported the method of payment as “Prepaid Card”—a category that captures cash reload mechanisms.
Notwithstanding the investigations, lawsuits, consumer alerts, monetary settlements, and injunctions requiring implementation and strengthening of anti-fraud measures, the use of cash-to-cash money transfers and cash reload mechanisms by telemarketers continues to cause substantial injury to consumers. As the rulemaking record makes clear, the substantial harm and losses sustained by consumers usually cannot be undone.
Certain cash-to-cash money transfers (those made to locations outside of the U.S.) are governed by the Remittance Rule, which provides disclosures to customers of money transfer providers. 12 CFR 1005.30(e) (definition of “remittance transfer” includes transfers “sent by a remittance transfer provider” to a “designated recipient” outside of the United States). In contrast, cash reload mechanisms, which consumers purchase directly from a retailer at the point of sale, may not qualify as remittance transfers covered by the Remittance Rule, depending on whether cash reloads are transferring funds outside of the United States and whether the transfer is “sent by a remittance transfer provider.” Whether the Remittance Rule applies to a particular cash-to-cash money transfer or cash reload mechanism, however, is immaterial to the Commission's analysis of the Final Rule. As discussed in section I.B.1.b above, existing laws regulate the relationship between the consumer and the money transfer provider, not the relationship between the consumer and the telemarketer or seller.
As described in the context of remotely created checks and remotely created payment orders, the Commission considers the extent to which a consumer can reasonably avoid injury, in part, by whether the consumer can make an informed choice. The Commission seeks “to halt some form of seller behavior that unreasonably creates or takes advantage of an obstacle to the free exercise of consumer decisionmaking.”
As is true in other telemarketing contexts, the ability of consumers to identify and avoid the risk of injury is substantially diminished when telemarketers engage in deceit to sell sham goods or services. Consumers often rely upon the representations made in telemarketing calls and comply with the payment instructions dictated by the telemarketer or seller. When deceitful telemarketers persuade consumers to deliver payment via cash-to-cash money transfers or cash reload mechanisms, the telemarketer causes additional harm that consumers cannot reasonably avoid. Consumers cannot avoid risks they do not perceive, and consumers generally do not appreciate that these payment mechanisms pose enhanced obstacles to detection of fraudulent conduct, to identification of the perpetrator, and to recovery of financial losses.
The lack of systematic monitoring of these payment mechanisms makes
Some opponents of a prohibition seem to suggest that consumers who have been deceived can and should reasonably avoid the harm—the initiation of a cash-to-cash money transfer or the turnover of a cash reload mechanism—by heeding the warnings not to transfer money or provide cash reloads to strangers.
Consumers, however, are under no duty to ferret out the truthfulness of marketing claims.
Green Dot recognized this dynamic in recent testimony to the U.S. Senate Special Committee on Aging, “it would appear that this tactic [consumer warnings on MoneyPak packaging] has not achieved the intended goal because the seniors ignore the warnings, convinced that the con artist is genuine.”
Opponents further argue that a prohibition against cash-to-cash money transfers and cash reload mechanisms is unwarranted because it is the unscrupulous actions of telemarketers and sellers—not the payment methods—that cause the unavoidable harm to consumers.
Furthermore, this argument by opponents ignores the fact that the record is replete with evidence of corrupt money transfer agents who have colluded with the perpetrators of telemarketing frauds, while money transfer companies did little to stop it.
The use of cash-to-cash money transfers and cash reload mechanisms by telemarketers and sellers produces clear adverse consequences for consumers that are not accompanied by an increase in services or benefits to consumers or to competition.
The rulemaking record confirms that the substantial and unavoidable harm to consumers resulting from the use of cash-to-cash money transfers in telemarketing transactions is not outweighed by any countervailing benefits to consumers or competition. No commenter cited a single legitimate telemarketer or seller that uses cash-to-cash money transfers in telemarketing. Instead, representatives of the money transfer industry described the benefits that cash-to-cash money transfers provide to consumers in non-telemarketing transactions, such as personal remittances to family and friends. As the law enforcement cases and consumer complaint data demonstrate, fraudulent telemarketers and sellers prefer anonymous, unrecoverable money transfers to conventional payment alternatives that are subject to federal consumer protections and that ensure systemic monitoring and dispute rights.
The Commission recognizes that consumers who wish to transfer money to friends, send money to family to pay tuition and medical bills, or remit money abroad to family may benefit from the convenience, speed, and cost that cash-to-cash money transfers can provide. These benefits, however, do not extend to the telemarketing context. Unlike ACH debits and card-based payment methods—including GPR cards that are used widely by unbanked and underbanked consumers
The Commission is of the firm view that a prohibition on the use of these payment methods by telemarketers and sellers will provide bright line guidance benefitting both consumers and the telemarketing industry. While the warnings that money transfer providers provide are useful, there are substantial benefits to bright line guidance. First, the message is clear and it is concise: It is illegal for telemarketers ask consumers to wire cash. Second, it is delivered by the government, a neutral and authoritative source. Third, it is a message about the requirements of the law rather than advice on when to be cautious in these types of transactions.
Pragmatically, consumers educated about the prohibition who later encounter a telemarketer asking for a cash-to-cash money transfer will be able to more quickly identify the illegal behavior and simply hang up. Money transfer providers will have the benefit of being able to deliver a clear and concise message to all consumers, and importantly, a message that does not implicate cash transfers to relatives or friends. Legitimate telemarketers and sellers should also benefit from increased consumer confidence.
Citing to the benefits that cash-to-cash money transfers provide to consumers in non-telemarketing transactions, such as personal remittances to family and friends,
The Commission does not find TMSRT's argument persuasive. First, the prohibition affects a discrete sub-set of all money transfers: cash-to-cash transfers. The prohibition does not restrict or prohibit the use, in telemarketing or non-telemarketing transactions, of other types of money transfers that originate from or are received into bank accounts, payment cards (including GPR cards), or accounts with payment intermediaries, for example. Second, money transfer providers already are trained in how to detect consumer fraud
For cash-to-cash money transfer providers that have and enforce policies and procedures designed to screen out fraud-induced transfers, any additional burden should be minimal. TMSRT indicates that its members already have implemented fraud prevention programs, and it does not quantify the costs of any programmatic changes the Rule would require.
TMSRT further argues that the amended rule would result in “substantial disruption” absent additional guidance on how members should determine if the recipient is a telemarketer.
The Commission also declines TMSRT's request to amend the proposed Rule to provide an exemption or safe harbor for providers of cash-to-cash money transfers.
Under the amended Rule, a cash-to-cash money transfer provider that has actual knowledge that the transfer is related to telemarketing, or consciously avoids knowing (such as by deliberately ignoring) signs that the transfer is related to telemarketing, may be found liable for assisting and facilitating a violation of the TSR. The Commission sees no reason to afford special treatment to this industry segment, particularly given past actions, by either lowering or raising the liability standard.
Finally, addressing commenters' general concerns about this Rule amendment, the Commission recognizes that regulation and law enforcement have limitations and cannot prevent or eliminate all fraud. However, the Commission concludes, based on the substantial record of fraudulent telemarketers' use of cash-to-cash money transfers, that a prohibition on the use of this type of money transfer in telemarketing is an important, beneficial, and a vital step in protecting consumers from the substantial and unavoidable harm caused by these practices. Given that there is no evidence that legitimate telemarketers use this payment mechanism, the Commission concludes that the burden on legitimate marketers is non-existent and that any burden to money transmitters seeking to comply with the new rule would be minimal given the existing prohibition against assisting and facilitating violations of the Rule and past law enforcement actions.
The rulemaking record confirms that the substantial and unavoidable harm to consumers resulting from the use of cash reload mechanisms in telemarketing transactions is unjustified by any countervailing benefits to consumers or competition. As with cash-to-cash money transfers, fraudulent telemarketers and sellers exploit cash reload mechanisms to avoid the use of conventional payment alternatives that are subject to federal consumer protection laws. Recent complaint data indicates that increasing numbers of consumers each year are paying tens of millions of dollars in fraud-induced cash reload mechanisms, including in the telemarketing context.
Also, as with cash-to-cash money transfers, the use of cash reload mechanisms in telemarketing requires the consumer to take several burdensome steps to initiate payment after the telephone call ends. The consumer typically must go to a retail location to select a cash reload card, pay a fee, provide the funds to be loaded, and engage in another telephone call to provide the telemarketer with the PIN code. For these reasons, it is not surprising that the record is devoid of evidence that any legitimate telemarketers or sellers rely on cash reload mechanisms in telemarketing transactions.
The rulemaking record demonstrates that cash reload mechanisms offer perpetrators of telemarketing fraud a relatively anonymous and irretrievable method for obtaining funds from consumers. The Commission concludes that this mounting economic harm is not outweighed by any countervailing benefits to consumers or competition. The largest cash reload provider, Green Dot, evidently agrees.
The Commission believes that a prohibition on the use of cash reload mechanisms will complement and reinforce the laudable response of these three cash reload providers to the growing use of these payment methods in telemarketing fraud. A prohibition on the use of these payment methods by telemarketers and sellers will provide bright line guidance benefitting both consumers and the telemarketing industry. Instead of general warnings from cash reload providers, consumer will receive the benefit of clear instructions and guidance from the federal government, advising that it is illegal for a seller or telemarketer to accept a cash reload mechanism as payment. Legitimate telemarketers and sellers, in turn, should benefit from increased consumer confidence.
Commenters opposed to the prohibition submit that the amendment is overbroad and “could potentially prohibit consumers' legitimate uses of cash reload mechanisms that are unrelated or incidental to any
Moreover, the implementation by the three major cash reload providers of the swipe reload process for GPR cards will likely render obsolete the use of cash reload mechanisms as direct payment for such non-telemarketing transactions. Today, consumers without access to traditional banking can load funds using the swipe process directly to a GPR card instead of using a PIN-based reload mechanism. In turn, consumers can use these GPR cards to pay for goods or services, make a bill payment, or buy from an e-commerce merchant. To the extent that cash reload mechanisms may have been used for such transactions in the past,
In light of the swipe reload availability, it may be useful to further clarify the scope of the cash reload ban in telemarketing. The prohibition does not prevent the use of other payment mechanisms, such as GPR cards, single-use prepaid cards, or funds in an account with an online payment intermediary, to pay for purchases. This is true even if a consumer uses a (PIN-based) cash reload mechanism to load funds onto an existing GPR card or another personal account. The Commission's concern is not the use of GPR cards or personal accounts—these have additional and more robust protections than cash reload mechanisms.
Comments opposed to the prohibition expressed concern about liability exposure for assisting and facilitating violations of the Rule and argue for a safe harbor or limitation on what constitutes “substantial assistance” under the TSR.
The NPRM proposed new definitions of “cash-to-cash money transfer” and “cash reload mechanism.” The Commission solicited public comment as to whether the proposed definitions adequately, precisely, and correctly described each payment alternative. In response, the Commission received no comments on the definition of cash-to-cash money transfer; and relevant comments from two cash reload providers, InComm and Green Dot regarding the definition of cash reload mechanism. Both of these comments were received before three providers began implementing a swipe reload process for adding funds to GPR cards on their networks. At that time, both commenters expressed concern that the term, in combination with the definition of “telemarketing,” would restrict the use of this payment method by consumers in legitimate non-telemarketing transactions, such as bill payments.
Nevertheless, the Commission concludes that some changes to the definition are warranted. As noted previously, the Commission's concern pertains to the ease with which perpetrators of telemarketing fraud use cash reload mechanisms as an inexpensive and largely irreversible method of siphoning money from defrauded consumers who divulge their cash reload PIN number or similar security code. Con artists can easily abscond with the money by applying funds from the cash reload mechanism to GPR cards or to online accounts they obtain using false names. This is the problem the Commission intends to curtail.
By contrast, the Commission does not intend the Rule to cover telemarketing transactions in which a consumer uses a GPR card (or an online account balance with a payment intermediary) to
To implement the prohibition against the use of cash-to-cash money transfers and cash reload mechanisms, the Commission amends § 310.4(a) to add a new paragraph (a)(10). Section 310.4(a)(10) of the amended Rule states that it is an abusive practice for a seller or telemarketer to accept from a customer or donor, directly or indirectly, a cash-to-cash money transfer or cash reload mechanism as payment for goods or services offered or sold through telemarketing or as a charitable contribution solicited or sought through telemarketing. The language of the prohibition addresses the receipt, directly or indirectly, of a cash reload mechanism by a telemarketer or seller. For reasons already discussed above, the prohibition does not cover circumstances where a consumer pays bills or merchants (including telemarketers) using a GPR card or account with an online payment intermediary that was funded by a cash reload mechanism.
As with the prohibition against the use of remotely created payment orders, the Commission concludes that the risks associated with cash-to-cash money transfers and cash reload mechanisms exist equally in outbound and inbound telemarketing calls. Accordingly, the prohibitions in § 310.4(a)(10) apply to both outbound and inbound telemarketing. However, to minimize the burden on sellers and telemarketers that have qualified for the general media and direct mail exemptions from the TSR for inbound telemarketing, the Commission is modifying the proposed amendments to § 310.6(b)(5) and (6). The purpose of the modification is to clarify that sellers and telemarketers that comply with the prohibition on the use of cash-to-cash money transfers and cash reload mechanisms in inbound telemarketing remain exempt from the TSR's requirements if they otherwise qualify for the general media or direct mail exemptions. Thus, they are covered by the TSR only if they violate the prohibition. Moreover, while non-compliance with one of these prohibitions subjects the violator to a TSR enforcement action for the violation, it does not deprive the violator of its exemption from the other requirements of the TSR.
The original TSR prohibited the abusive telemarketing practice of collecting advanced fees for services promising to recover losses incurred by consumers in a previous telemarketing transaction.
The NPRM proposed the expansion in response to the widespread migration of frauds to other communication channels made possible by new technologies, including Internet Web sites and email. As a result, the Commission finds that telemarketers selling recovery services are just as likely to obtain lists of online scam victims as they are to obtain lists of victims of telemarketing fraud. These telemarketers can easily avoid the Rule's current advance fee prohibition simply by telemarketing their advance fee recovery services only to victims of online scams. Indeed, in
The Commission agrees with the DOJ-CPB that there exists “no logical reason” to differentiate recovery room victims based on whether the original scam was a telemarketing scam.
The Commission received comparatively few comments on the proposals in the NPRM to modify five existing TSR provisions to make Commission enforcement policy more transparent. These amendments: (1) Clarify that any recording made to memorialize a customer's or donor's express verifiable authorization (“EVA”) pursuant to § 310.3(a)(3)(ii) must include an accurate description, clearly and conspicuously stated, of the goods or services or charitable contribution for which payment authorization is sought; (2) clarify that the exemption for calls to businesses in § 310.6(b)(7) extends only to calls inducing a sale or contribution from the business, and not to calls inducing sales or contributions from individuals employed by the business; and (3) address provisions pertaining to the Do Not Call requirements of the TSR.
Specifically, the amendments to the Do Not Call provisions pertain to three sections. The first amendment expressly states that a seller or telemarketer bears the burden of demonstrating that the seller has an existing business relationship (“EBR”) with a customer whose number is listed on the Do Not Call Registry, or has obtained an express written agreement (“EWA”) from such a
The NPRM proposed an amendment to make it unmistakably clear that an oral verification recording of a consumer's agreement to be charged for a telemarketing transaction must include “an accurate description, clearly and conspicuously stated, of the goods or services or charitable contribution for which payment authorization is sought.”
Section 310.3(a)(3)(ii) permits the use of an audio recording to memorialize a consumer's express verifiable oral authorization of a charge for a telemarketing transaction.
The NPRM proposed an amendment to make it explicit that the business-to-business exemption is available only to sellers and telemarketers that are soliciting the purchase of goods or services or a charitable contribution by the business itself, rather than personal purchases or contributions by employees of the business. Five comments generally supported the amendment,
The comment opposing the amendment is based on a fundamental misunderstanding. It incorrectly presumes that the existing provision exempts telemarketing calls directed to a business telephone number to solicit sales or charitable contributions from individual employees. That has never been the case. By its terms, the exemption applies only to “[t]elephone calls between a telemarketer
Thus, the Commission's decision to adopt this amendment is simply a clarification of the scope of the existing exemption, not a change in its substance. This clarification should further deter telemarketers from attempting to circumvent the Registry by soliciting employees at their places of business to make personal charitable contributions or to purchase goods or services for their individual use.
The 2003 amendments to the TSR that created the National Do Not Call Registry included provisions: (1) Permitting live telemarketing calls to numbers on the registry if the seller has an EBR with the person called or has obtained his or her EWA to receive the call; (2) prohibiting sellers or telemarketers from denying or interfering in any way with a consumer's right to be placed on its entity-specific do-not-call list; and (3) barring sellers and telemarketers from sharing the fees for accessing the Registry. The remaining amendments seek to clarify these three provisions to reflect the Commission's intent and enforcement policy. The TSR requires sellers and telemarketers to delete from their calling lists any home or cell phone number that consumers have placed on the Registry.
The NPRM proposed modifications to the EBR and EWA carve outs from the prohibition against outbound
As stated in the NPRM, the Commission's goal in proposing these amendments was “to make it unmistakably clear that the burden of proof for establishing” an EWA or EBR as an affirmative defense to otherwise prohibited calls to numbers on the Registry “falls on the seller or telemarketer relying on it.”
In adopting the amendments, the Commission again wishes to emphasize that each of the carve outs is limited to the specific seller that obtained the EWA directly from, or has an EBR directly with, the person called.
The NPRM proposed an amendment to clarify the types of burdens that impermissibly deny or interfere with a consumer's right to be placed on an entity-specific do-not-call list. In addition, it included an amendment to disqualify a seller or telemarketer from the safe harbor for isolated or inadvertent violations if it fails to obtain the information needed to honor a do-not-call request.
The Commission accordingly has decided to adopt the amendment to § 310.4(b)(1)(ii), which currently prohibits sellers and telemarketers from “[d]enying or interfering in any way, directly or indirectly” with a consumer's right to be placed on an entity-specific do-not-call list. In order to make the prohibition more explicit and to put sellers and telemarketers clearly on notice of the practices it prohibits, the amendment adds illustrative examples of the types of burdens the Commission regards as impermissible. As amended, the prohibition lists the following examples of impermissible burdens: Harassing consumers who make such a request, hanging up on them, failing to honor the request, requiring the consumer to listen to a sales pitch before accepting the request, assessing a charge or fee for honoring the request, requiring the consumer to call a different number to submit the request, and requiring the consumer to identify the seller or charitable organization making the call or on whose behalf the call is made.
The Commission also amends § 310.4(b)(3), which provides a safe harbor for inadvertent violations of the prohibition in § 310.4(b)(1)(ii) against denying or interfering with an entity specific do-not-call request if certain requirements are met. The amendment was specifically supported by one comment and none opposed it.
The NPRM proposed a clarification that would make it explicit that the TSR prohibition against sellers sharing the cost of Registry fees is absolute. Five comments noted their support for the amendment,
The original prohibition was adopted by the Commission in conformity with regulations previously adopted by the FCC that flatly ban any sharing or division of costs for accessing the National Do Not Call Registry.
The Regulatory Flexibility Act of 1980 (“RFA”)
Although the Commission believed that the amendments it proposed would not have a significant economic impact upon small entities, it included an IRFA in the NPRM and solicited public comment on it. None of the public comments received addressed the IRFA. The Commission continues to believe that the amendments it is adopting will not have a significant economic impact upon small entities, but nonetheless in the interest of caution is providing this FRFA.
As described in Sections II through III above, the amendments are intended to address telemarketing sales abuses arising from the use of remotely created checks, remotely created payment orders, cash-to-cash money transfers, cash reload mechanisms, recovery services, and entity-specific do-not-call requests. Other amendments clarify several TSR requirements in order to reflect longstanding Commission enforcement policy. The objective of the amendments is to curb deceptive and abusive practices occurring in telemarketing. The legal basis for the amendments is the Telemarketing Act.
As noted earlier, no comments, including any from the Small Business Administration, were received directly in response to the IRFA. Some concerns were raised about the potential effect of the prohibition against remotely created payment orders and remotely created checks on small business by FRBA and by InfoCision, as discussed in section II.A.2 above.
The amendments to the Rule affect sellers and telemarketers engaged in “telemarketing,” as defined by the Rule to mean “a plan, program, or campaign which is conducted to induce the purchase of goods or services or a charitable contribution, by use of one or more telephones and which involves more than one interstate telephone call.”
Determining a precise estimate of how many of these are small entities, or describing those entities further, is not readily feasible because the staff is not aware of published data that report annual revenue or employment figures for the industry. The Commission invited comment and information on this issue, but received no comments.
The Commission does not believe that the amendments impose any new disclosure, reporting, recordkeeping or other compliance burdens. Rather, the amendments add to or revise existing TSR prohibitions and clarify existing requirements. The amendments: (1) Add new prohibitions barring the use of remotely created checks, remotely created payment orders, cash-to-cash money transfers, and cash reload mechanisms in both outbound and inbound telemarketing; and (2) revise the existing prohibition on advance fee recovery services, now limited to recovery of losses in prior telemarketing transactions, to include recovery of losses in
The amendments also include a number of minor technical revisions that do not impose any new disclosure, reporting, recordkeeping or other compliance burdens, but merely clarify existing TSR requirements to reflect Commission enforcement policy. These amendments state expressly (1) that the seller or telemarketer bears the burden of demonstrating under 16 CFR 310.4(b)(1)(iii)(B) that the seller has an existing business relationship (“EBR”) with a customer whose number is listed on the Do Not Call Registry, or has obtained the express written agreement (“EWA”) of such a customer to receive a telemarketing call, as previously stated by the Commission; (2) that the requirement in 16 CFR 310.3(a)(3)(ii) that any recording made to memorialize a customer's or donor's express verifiable authorization (“EVA”) must include an accurate description, clearly and conspicuously stated, of the goods or services or charitable contribution for which payment authorization is sought; (3) that the business-to-business exemption in 16 CFR 310.6(b)(7) extends only to calls inducing a sale or contribution from the business itself, and not to calls inducing sales or contributions from individuals employed by the business; (4) that under 16 CFR 310.8(c) no person can participate in an arrangement to share the cost of accessing the National Do Not Call Registry; and (5) provide examples of the types of impermissible burdens on consumers that the Commission regards as violations of 16 CFR 310.4(b)(1)(ii) because they deny or interfere with their right to be placed on a seller's or telemarketer's entity-specific do-not-call list. A related amendment specifies that a seller's or telemarketer's failure to obtain the information necessary to honor a consumer's request to be placed on a seller's entity-specific do-not-call list pursuant to 16 CFR 310.4(b)(1)(ii) disqualifies it from relying on the safe harbor in 16 CFR 310.4(b)(3) for isolated or inadvertent violations.
The classes of small entities affected by the amendments include telemarketers or sellers engaged in acts or practices covered by the Rule. The Commission maintains its belief, in the absence of any comments it requested on this issue, that no professional skills will be required for compliance with the amendments because the amendments do not impose any new reporting, recordkeeping, disclosure or other compliance requirements, and do not extend the scope of the TSR to cover additional entities.
Although some of the public comments did suggest alternatives to the prohibition on the use of remotely
The amendments adopted by the Commission do not create any new recordkeeping or disclosure requirements, or expand the existing coverage of those requirements to marketers not previously covered by the TSR. Accordingly, they do not invoke the Paperwork Reduction Act.
The new prohibitions on the use of remotely created checks, remotely created payment orders, cash-to-cash money transfers, and cash reload mechanisms apply not only to marketers making outbound calls that are currently subject to the TSR, but also to those who receive inbound calls from consumers as a result of direct mail or general media advertising. While the new prohibition on the use of novel payment methods applies to both outbound and inbound telemarketing calls, sellers and telemarketers that comply with these inbound telemarketing prohibitions remain exempt from the TSR if they otherwise qualify for the direct mail or general media exemptions.
The expansion of the TSR's ban on advance fees for recovery services to apply to funds lost in
Telemarketing, Trade practices.
For the reasons set forth in the preamble, the Federal Trade Commission amends title 16 Code of Federal Regulations as follows:
15 U.S.C. 6101-6108.
(f)
(1) An electronic fund transfer as defined in section 903 of the EFTA;
(2) Covered by Regulation E, 12 CFR 1005.20, pertaining to gift cards; or
(3) Subject to the Truth in Lending Act, 15 U.S.C. 1601
(g)
(cc)
(a) * * *
(3) * * *
(ii) * * *
(A) An accurate description, clearly and conspicuously stated, of the goods or services or charitable contribution for which payment authorization is sought;
The revisions and additions read as follows:
(a) * * *
(3) Requesting or receiving payment of any fee or consideration from a person for goods or services represented to recover or otherwise assist in the return of money or any other item of value paid for by, or promised to, that person in a previous transaction, until seven (7) business days after such money or other item is delivered to that person. This provision shall not apply to goods or services provided to a person by a licensed attorney;
(9) Creating or causing to be created, directly or indirectly, a remotely created payment order as payment for goods or services offered or sold through telemarketing or as a charitable contribution solicited or sought through telemarketing; or
(10) Accepting from a customer or donor, directly or indirectly, a cash-to-cash money transfer or cash reload mechanism as payment for goods or services offered or sold through telemarketing or as a charitable contribution solicited or sought through telemarketing.
(b) * * *
(1) * * *
(ii) Denying or interfering in any way, directly or indirectly, with a person's right to be placed on any registry of names and/or telephone numbers of persons who do not wish to receive outbound telephone calls established to comply with paragraph (b)(1)(iii)(A) of this section, including, but not limited to, harassing any person who makes such a request; hanging up on that person; failing to honor the request; requiring the person to listen to a sales pitch before accepting the request; assessing a charge or fee for honoring the request; requiring a person to call a different number to submit the request; and requiring the person to identify the seller making the call or on whose behalf the call is made;
(iii) * * *
(B) That person's telephone number is on the “do-not-call” registry, maintained by the Commission, of persons who do not wish to receive outbound telephone calls to induce the purchase of goods or services unless the seller or telemarketer:
(
(
(3) * * *
(vi) Any subsequent call otherwise violating paragraph (b)(1)(ii) or (iii) of this section is the result of error and not of failure to obtain any information necessary to comply with a request pursuant to paragraph (b)(1)(iii)(A) of this section not to receive further calls by or on behalf of a seller or charitable organization.
(b) * * *
(5) Telephone calls initiated by a customer or donor in response to an advertisement through any medium, other than direct mail solicitation,
(i) Calls initiated by a customer or donor in response to an advertisement relating to investment opportunities, debt relief services, business opportunities other than business arrangements covered by the Franchise Rule or Business Opportunity Rule, or advertisements involving offers for goods or services described in § 310.3(a)(1)(vi) or § 310.4(a)(2) through (4);
(ii) [Reserved]
(iii) Any instances of upselling included in such telephone calls;
(6) Telephone calls initiated by a customer or donor in response to a direct mail solicitation, including solicitations via the U.S. Postal Service, facsimile transmission, electronic mail, and other similar methods of delivery in which a solicitation is directed to specific address(es) or person(s), that clearly, conspicuously, and truthfully discloses all material information listed in § 310.3(a)(1), for any goods or services offered in the direct mail solicitation, and that contains no material misrepresentation regarding any item contained in § 310.3(d) for any requested charitable contribution;
(i) Calls initiated by a customer in response to a direct mail solicitation relating to prize promotions, investment opportunities, debt relief services, business opportunities other than business arrangements covered by the Franchise Rule or Business Opportunity Rule, or goods or services described in § 310.3(a)(1)(vi) or § 310.4(a)(2) through (4);
(ii) [Reserved]
(iii) Any instances of upselling included in such telephone calls; and
(7) Telephone calls between a telemarketer and any business to induce the purchase of goods or services or a charitable contribution by the business, except calls to induce the retail sale of nondurable office or cleaning supplies;
(b) * * *
(5) * * *
(ii) The requirements of § 310.4(a)(9) or (10); or
(6)
(ii) The requirements of § 310.4(a)(9) or (10); or
(c) The annual fee, which must be paid by any person prior to obtaining access to the National Do Not Call Registry, is $60 for each area code of data accessed, up to a maximum of $16,482; provided, however, that there shall be no charge to any person for accessing the first five area codes of data, and provided further, that there shall be no charge to any person engaging in or causing others to engage in outbound telephone calls to consumers and who is accessing area codes of data in the National Do Not Call Registry if the person is permitted to access, but is not required to access, the National Do Not Call Registry under this Rule, 47 CFR 64.1200, or any other Federal regulation or law. No person may participate in any arrangement to share the cost of accessing the National Do Not Call Registry, including any arrangement with any telemarketer or service provider to divide the costs to access the registry among various clients of that telemarketer or service provider.
By direction of the Commission, Commissioner Ohlhausen dissenting.
The following Statement of the Federal Trade Commission and Separate Statement of Commissioner Maureen K. Ohlhausen, Dissenting In Part, will not appear in the Code of Federal Regulations.
Following careful study of an extensive public record, the Commission is amending the Telemarketing Sales Rule (“TSR”) to address new forms of telemarketing fraud and more effectively protect consumers from deceptive and abusive telemarketing practices.
In assessing whether a telemarketing practice is “abusive,” we apply our traditional unfairness test and ask whether the practice causes or is likely to cause substantial injury to consumers that is neither reasonably avoidable by consumers nor outweighed by countervailing benefits to consumers or competition. As detailed at length in our
The record demonstrates that the telemarketing use of each of these payment methods has resulted in rampant abuse that has caused substantial harm to consumers. This abuse persists despite significant law enforcement efforts by the Federal Trade Commission and other federal and state law enforcers. Indeed, gaps in our financial system make it difficult to detect and stop fraudulent use of these payment methods. And, in contrast to the overwhelming evidence of telemarketing fraud exploiting the use of these payment methods, we find almost no evidence that they are being used for legitimate telemarketing purposes. This has led numerous law enforcers to call for a prohibition on the use of all four of these non-conventional payment methods.
Opponents of a ban acknowledge the substantial harm consumers have suffered and continue to suffer but argue that a prohibition is premature, would fragment legal requirements for payments, and would impinge on legitimate and emerging uses of the four payment methods. We find these arguments unpersuasive when balanced against the unmitigated and significant harm to consumers that the Commission continues to see in this area.
First, it is undeniable that years of public efforts to control the widespread abuse of RCCs and RCPOs in telemarketing have failed to protect consumers, and there is no indication that this situation will change in the foreseeable future. For instance, efforts to add protections to RCCs have languished for the past decade. Nor has there been any progress in recent years in efforts to improve the tracking of remotely created payments. Similarly, regulations governing remittances, including cash-to-cash money transfers, as well as proposed rules regarding prepaid accounts, which would address only certain cash reload mechanisms, do not address the telemarketing abuses that concern us. Simply put, there are no regulatory efforts underway that would address the serious harms to consumers that our proceeding has identified.
Second, we believe the clear, bright line rules we are putting in place provide much needed clarity for telemarketers and payment processors in a landscape that currently consists of a patchwork of state and federal rules. Rather than fragmenting the law in this area, we are simplifying it.
Finally, as noted above, we have found virtually no evidence of legitimate telemarketing uses of the four payment methods at issue. Our ban is focused on addressing abusive telemarketing practices using these payment methods; it does not get in the way of future innovation in the area of payor-initiated payments—including the use of digital checks created by consumers using their smartphones—in telemarketing and other transactions. In fact, the telemarketing industry has already adopted a variety of newer and safer payment alternatives.
For all of these reasons, we believe the TSR amendments we announce today are an important and necessary step to stop ongoing substantial harm to consumers from telemarketing fraud.
By direction of the Commission, Commissioner Ohlhausen dissenting.
Today the Commission amends the Telemarketing Sales Rule (TSR) in an effort to combat telemarketing fraud.
The comments filed by the Federal Reserve Bank of Atlanta (FRBA)
• “[I]t is clearly preferable public policy not to create a fragmented `law of payments' in which multiple federal agencies take differing and/or conflicting views on the legitimacy of specific payment instruments.”
• “RCPOs are an emerging form of payment. . . . Prohibiting their use prior to achieving clarity regarding the potentially enhanced consumer protections they offer or the business functionalities they could provide would be premature.”
• “With respect to the difficulty in distinguishing legitimate uses from fraudulent uses of RCPOs, the FRBA would ask that the FTC allow industry some time to develop mechanisms by which this distinction could be achieved. There is an opportunity, through authentication and other technology driven solutions, for RCPOs to provide many of the benefits of checks without carrying many of the risks. A premature ban on their use in the telemarketing context may limit their use elsewhere as they would be stigmatized as a `risky' form of payment.”
• “FRBA and the Commission both perceive the check collection and return system is lacking a comprehensive method or process of identifying and responding to transactional patterns that are strongly indicative of large scale consumer fraud. However, FRBA does not believe that the problem can be addressed effectively by banning the use of RCCs and RCPOs.”
• “FRBA respectfully suggests that a strengthened regulatory response to this lack of data that could identify significant patterns of consumer fraud is not to ban the use of checks or any subset of checks, but to require every bank to collect and report to its primary federal regulator on a frequent basis each instance in which any of its customers deposited significant numbers of checks that resulted in an abnormal number or rate of returns.”
In sum, the FRBA's analysis of the prohibition of novel payments in telemarketing indicates that any reduction in consumer harm from telemarketing fraud is outweighed by the likely benefits to consumers and competition of avoiding a fragmented law of payments, not limiting the use of novel payments prematurely, and allowing financial regulators working with industry to develop better consumer protections. The FRBA has instead requested that we work together with our sister agencies by striving to “strengthen anti-fraud and consumer protection measures around existing and emerging payment mechanisms rather than by prohibiting the use of specific payment methods only in the telemarketing industry.”
| 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 |