| Page Range | 26181-26436 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 26435 - National Teacher Appreciation Day and National Teacher Appreciation Week, 2015 | |
| 80 FR 26431 - National Charter Schools Week, 2015 | |
| 80 FR 26314 - A.B. Watley Group, Inc., Cambridge Heart, Inc., iGenii Inc., and RKO Resources, Inc. (a/k/a Shamika 2 Gold, Inc.); Order of Suspension of Trading | |
| 80 FR 26234 - Sunshine Act Meeting | |
| 80 FR 26296 - Sunshine Act Meeting | |
| 80 FR 26226 - Drawn Stainless Steel Sinks From the People's Republic of China: Preliminary Results of Countervailing Duty Administrative Review, Rescission in Part, and Intent To Rescind the Review in Part; 2012-2013 | |
| 80 FR 26224 - Polyethylene Retail Carrier Bags From Thailand: Preliminary Results of Antidumping Duty Administrative Review and Rescission of Review in Part; 2013-2014 | |
| 80 FR 26230 - Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Amended Final Results of Antidumping Duty Administrative Review; 2012-2013 | |
| 80 FR 26229 - Preliminary Negative Determination of Circumvention of the Antidumping Order on Polyethylene Terephthalate Film, Sheet, and Strip From the United Arab Emirates | |
| 80 FR 26227 - Drawn Stainless Steel Sinks From the People's Republic of China: Preliminary Results of the Antidumping Duty Administrative Review; 2012-2014 | |
| 80 FR 26222 - Certain Steel Threaded Rod From the People's Republic of China: Preliminary Results of the Antidumping Duty Administrative Review; 2013-2014 | |
| 80 FR 26257 - Information Collection; Novation/Change of Name Requirements | |
| 80 FR 26232 - Advisory Committee on Supply Chain Competitiveness: Notice of Public Meetings | |
| 80 FR 26235 - Information Collection Requirements; Defense Federal Acquisition Regulation Supplement; Construction and Architect-Engineer Contracts | |
| 80 FR 26318 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Fatigue Tolerance Evaluation of Metallic Structures | |
| 80 FR 26319 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Financial Responsibility for Licensed Launch Activities | |
| 80 FR 26318 - Second Meeting: RTCA Subcommittee 233 (SC 233) | |
| 80 FR 26319 - Eighth Meeting: RTCA Subcommittee 228 (SC 228) | |
| 80 FR 26291 - Privacy Act of 1974, as Amended; Notice To Amend an Existing System of Records | |
| 80 FR 26301 - Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.; Establishment of Atomic Safety and Licensing Board | |
| 80 FR 26302 - DTE Electric Company; Fermi 3 | |
| 80 FR 26303 - Compliance With Phase 2 of Order EA-13-109 | |
| 80 FR 26365 - Excess Uranium Management: Secretarial Determination of No Adverse Impact on the Domestic Uranium Mining, Conversion, and Enrichment Industries | |
| 80 FR 26249 - California State Nonroad Engine Pollution Control Standards; Mobile Cargo Handling Equipment at Ports and Intermodal Rail Yards Regulations; Notice of Decision | |
| 80 FR 26429 - Federal Acquisition Regulation; Federal Acquisition Circular 2005-82; Small Entity Compliance Guide | |
| 80 FR 26427 - Federal Acquisition Regulation; Technical Amendments | |
| 80 FR 26426 - Federal Acquisition Regulation; Enhancements to Past Performance Evaluation Systems | |
| 80 FR 26424 - Federal Acquisition Regulation; Review and Justification of Pass-Through Contracts | |
| 80 FR 26423 - Federal Acquisition Regulation: Equal Employment and Affirmative Action for Veterans and Individuals With Disabilities | |
| 80 FR 26421 - Federal Acquisition Regulation; Federal Acquisition Circular 2005-82; Introduction | |
| 80 FR 26264 - Medicare Program; Public Meeting on July 16, 2015 Regarding New and Reconsidered Clinical Diagnostic Laboratory Test Codes for the Clinical Laboratory Fee Schedule for Calendar Year 2016 | |
| 80 FR 26198 - Energy Conservation Program for Consumer Products: Test Procedures for Direct Heating Equipment and Pool Heaters | |
| 80 FR 26257 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 80 FR 26257 - Formations of, Acquisitions by, and Mergers of Savings and Loan Holding Companies | |
| 80 FR 26298 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Wireless Industrial Technology Konsortium, Inc. | |
| 80 FR 26200 - Trade Options | |
| 80 FR 26298 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Advanced Media Workflow Association, Inc. | |
| 80 FR 26183 - Drawbridge Operation Regulation; New Jersey Intracoastal Waterway (NJICW), Atlantic City, NJ | |
| 80 FR 26295 - Certain 3G Mobile Handsets and Components Thereof, Notice of Request for Statements on the Public Interest | |
| 80 FR 26233 - Agency Information Collection Activities: Comment Request | |
| 80 FR 26234 - Agency Information Collection Activities: Comment Request | |
| 80 FR 26280 - Joint Meeting of the Bone, Reproductive, and Urologic Drugs Advisory Committee, and the Drug Safety and Risk Management Advisory Committee; Notice of Meeting | |
| 80 FR 26199 - Commercial Package Air Conditioners and Commercial Warm Air Furnaces Working Group: Notice of Open Meetings and Webinar | |
| 80 FR 26269 - Questions and Answers Regarding Mandatory Food Recalls; Draft Guidance for Industry | |
| 80 FR 26235 - U.S. Air Force Scientific Advisory Board; Notice of Meeting | |
| 80 FR 26297 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-ODVA, Inc. | |
| 80 FR 26233 - Submission for OMB Review; Comment Request | |
| 80 FR 26299 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Reinstatement, With Change, of a Previously Approved Collection for Which Approval Has Expired; Survey: Survey of Prison Inmates (Formerly Named the Survey of Inmates in State and Federal Correctional Facilities) | |
| 80 FR 26271 - Determination of Regulatory Review Period for Purposes of Patent Extension; SYNRIBO | |
| 80 FR 26274 - Determination of Regulatory Review Period for Purposes of Patent Extension; OVUGEL | |
| 80 FR 26277 - Determination of Regulatory Review Period for Purposes of Patent Extension; OSENI | |
| 80 FR 26275 - Determination of Regulatory Review Period for Purposes of Patent Extension; HVAD ROTARY BLOOD PUMP | |
| 80 FR 26272 - Determination of Regulatory Review Period for Purposes of Patent Extension; GATTEX | |
| 80 FR 26268 - Determination of Regulatory Review Period for Purposes of Patent Extension; ISTENT TRABECULAR MICRO-BYPASS STENT | |
| 80 FR 26273 - Determination of Regulatory Review Period for Purposes of Patent Extension; COFLEX INTERLAMINAR TECHNOLOGY | |
| 80 FR 26276 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approval; Premarket Notification for a New Dietary Ingredient | |
| 80 FR 26269 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Administrative Practices and Procedures; Formal Evidentiary Public Hearing | |
| 80 FR 26278 - Agency Information Collection Activities; Proposed Collection; Comment Request; Medical Device Reporting: Manufacturer, Importer, User Facility, and Distributor Reporting | |
| 80 FR 26276 - Determination of Regulatory Review Period for Purposes of Patent Extension; SIGNIFOR | |
| 80 FR 26314 - Request for Information on Early Intervention Strategies for Serving Individuals With Disabilities | |
| 80 FR 26300 - Proposal Review Panel for Computing and Communication Foundations Notice of Meeting | |
| 80 FR 26196 - Transportation for Individuals With Disabilities; Reasonable Modification of Policies and Practices; Correction | |
| 80 FR 26236 - Notice of Intent To Grant Partially Exclusive Patent License; Epitracker, LLC | |
| 80 FR 26254 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of Florida | |
| 80 FR 26266 - Proposed Information Collection Activity; Comment Request | |
| 80 FR 26267 - Proposed Information Collection Activity; Comment Request | |
| 80 FR 26317 - Petition for Exemption; Summary of Petition Received; Aviation Fabricators, Inc. | |
| 80 FR 26283 - Endangered and Threatened Wildlife and Plants; Permit Applications | |
| 80 FR 26327 - Proposed Collection; Comment Request; Office of the Procurement Executive | |
| 80 FR 26261 - National Advisory Council for Healthcare Research and Quality: Request for Nominations for Public Members | |
| 80 FR 26258 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 80 FR 26262 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 80 FR 26289 - Draft Environmental Assessment and Draft Habitat Conservation Plan for the Fender's Blue Butterfly on Private Lands in Yamhill County, Oregon; Reopening of Comment Period | |
| 80 FR 26217 - Privacy Act of 1974; System of Records | |
| 80 FR 26256 - Information Collection Approved by the Office of Management and Budget (OMB) | |
| 80 FR 26255 - Information Collection Being Submitted for Emergency Review and Approval to the Office of Management and Budget | |
| 80 FR 26241 - Electronic Filing Protocols for Commission Forms; Notice of Conference With North American Energy Standards Board | |
| 80 FR 26248 - FFP Project 92, LLC; Notice of Application Tendered for Filing With the Commission and Establishing Procedural Schedule for Licensing and Deadline for Submission of Final Amendments | |
| 80 FR 26244 - Notice of Settlement Agreement and Soliciting Comments | |
| 80 FR 26244 - Pacific Gas and Electric Company; Notice of Application Accepted for Filing, Soliciting Comments, Motions To Intervene, and Protests | |
| 80 FR 26247 - Pacific Gas and Electric Company; Notice of Application Accepted for Filing, Soliciting Comments, Motions To Intervene, and Protests | |
| 80 FR 26241 - BP Products North America Inc. v. Sunoco Pipeline L.P.; Notice of Complaint | |
| 80 FR 26245 - Navigator BSG Transportation & Storage, LLC; Notice of Petition for Declaratory Order | |
| 80 FR 26236 - Panhandle Eastern Pipe Line Company, LP; Trunkline Gas Company, LLC; Rover Pipeline LLC; Notice of Intent To Prepare an Environmental Impact Statement for the Proposed Panhandle Backhaul Project and Trunkline Backhaul Project, and Request for Comments on Environmental Issues | |
| 80 FR 26239 - Tennessee Gas Pipeline Company, L.L.C.; Notice of Intent To Prepare an Environmental Assessment for the Proposed Broad Run Expansion Project and Request for Comments on Environmental Issues | |
| 80 FR 26245 - Combined Notice of Filings #2 | |
| 80 FR 26242 - Combined Notice of Filings #1 | |
| 80 FR 26320 - Qualification of Drivers; Exemption Applications; Vision | |
| 80 FR 26196 - Atlantic Highly Migratory Species (HMS); 2006 Consolidated HMS Fishery Management Plan (FMP); Amendment 7 | |
| 80 FR 26317 - Petition for Exemption; Summary of Petition Received; Airlines for America | |
| 80 FR 26232 - Mid-Atlantic Fishery Management Council (MAFMC); Fisheries of the Northeastern United States; Public Meeting. | |
| 80 FR 26306 - Self-Regulatory Organizations: Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fee Schedule | |
| 80 FR 26298 - Notice of Lodging of Stipulation and Proposed Order Under the Comprehensive Environmental Response, Compensation, and Liability Act | |
| 80 FR 26236 - Notice of Availability of Government-Owned Inventions; Available for Licensing | |
| 80 FR 26304 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fee Schedule | |
| 80 FR 26216 - Submission for OMB Review; Comment Request | |
| 80 FR 26294 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
| 80 FR 26310 - Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Consisting of the Specifications for the Selection of Examination Questions and Content Outline for the Municipal Advisor Representative Qualification Examination | |
| 80 FR 26216 - Brazos Electric Power Cooperative, Inc.; Notice of Intent To Hold a Public Workshop and Prepare an Environmental Assessment | |
| 80 FR 26301 - FirstEnergy Nuclear Operating Company; Davis-Besse Nuclear Power Station, Unit 1 | |
| 80 FR 26290 - Proposed Renewal of Information Collection: OMB Control Number 1094-0001; Alternatives Process in Hydropower Licensing | |
| 80 FR 26283 - Notice of Workshop Meeting Regarding Information Sharing and Analysis Organizations | |
| 80 FR 26182 - Drawbridge Operation Regulation; Lewis and Clark River, Astoria, OR | |
| 80 FR 26281 - Agency Information Collection Activities; Proposed Collection; Public Comment Request | |
| 80 FR 26258 - Federal Travel Regulation (FTR); Relocation Allowances-Requirement To Report Agency Payments for Relocation | |
| 80 FR 26210 - Prevention of Significant Deterioration Permitting for Greenhouse Gases: Providing Option for Rescission of EPA-Issued Tailoring Rule Step 2 Prevention of Significant Deterioration Permits | |
| 80 FR 26183 - Prevention of Significant Deterioration Permitting for Greenhouse Gases: Providing Option for Rescission of EPA-Issued Tailoring Rule Step 2 Prevention of Significant Deterioration Permits | |
| 80 FR 26296 - Boltless Steel Shelving Units Prepackaged for Sale From China; Scheduling of the Final Phase of Countervailing Duty and Antidumping Duty Investigations | |
| 80 FR 26282 - National Heart, Lung, and Blood Institute; Notice of Meeting | |
| 80 FR 26282 - National Institute on Aging; Notice of Closed Meetings | |
| 80 FR 26181 - Professional Standards for State and Local School Nutrition Programs Personnel as Required by the Healthy, Hunger-Free Kids Act of 2010 | |
| 80 FR 26321 - Deepwater Port License Application Process for Offshore Export Facilities | |
| 80 FR 26191 - Approval of Alabama's Request To Relax the Federal Reid Vapor Pressure Gasoline Volatility Standard for Birmingham, Alabama | |
| 80 FR 26212 - Relaxation of the Federal Reid Vapor Pressure Gasoline Volatility Standard for Birmingham, Alabama | |
| 80 FR 26324 - Pipeline Safety: Liquefied Natural Gas Facility User Fee Rate Increase | |
| 80 FR 26300 - Advisory Board; Notice of Meeting | |
| 80 FR 26242 - Records Governing Off-the-Record Communications; Public Notice | |
| 80 FR 26189 - Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Albuquerque/Bernalillo County; Revisions to Emissions Inventory Requirements, and General Provisions | |
| 80 FR 26329 - Pay Versus Performance |
Food and Nutrition Service
Rural Utilities Service
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
Defense Acquisition Regulations System
Navy Department
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
Fish and Wildlife Service
Hearings and Appeals Office, Interior Department
Antitrust Division
National Institute of Corrections
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Maritime Administration
Pipeline and Hazardous Materials Safety Administration
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Food and Nutrition Service (FNS), USDA.
Final rule; correction.
This document contains a correction to the final rule published in the
Julie Brewer, School Programs Branch, Policy and Program Development Division, Food and Nutrition Service, at (703) 305-2590.
The Food and Nutrition Service published a final rule in the
The revisions read as follows:
(b) * * *
(1) * * *
(i) * * *
(B) A bachelor's degree, or equivalent educational experience, with any academic major or area of concentration,
(2) * * *
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Oregon State (Lewis and Clark River) Highway Bridge across the Lewis and Clark River, mile 1.0, at Astoria, OR. The deviation is necessary to accommodate bridge maintenance activities on the bridge.
This deviation is effective from 7 a.m. on May 11, 2015 to 5 p.m. on August 30, 2015.
The docket for this deviation, [USCG-2015-0351] is available at
If you have questions on this temporary deviation, call or email Steven M. Fischer, Thirteenth Coast Guard District Bridge Program Administrator, telephone 206-220-7282, email
The Oregon Department of Transportation (ODOT) has requested that the Lewis and Clark River Bridge, mile 1.0, remain in the closed-to-navigation position, and need not open to vessel traffic Tuesday through Saturday. The bascule span will be available to open on Mondays from 7 a.m. to 4 p.m. when given 3 hours advanced notice. The deviation is necessary to facilitate bridge maintenance activities to include repairing and preserving the bascule drawbridge structural steel. The Lewis and Clark Bridge provides a vertical clearance of 17.3 feet above mean high water when in the closed-to-navigation position. The normal operating schedule of the Oregon State highway bridge can be found in 33 CFR 117.899(c). This deviation period is from 7 a.m. on May 11, 2015 to 5 p.m. on August 30, 2015. The deviation allows the bascule span of the Lewis and Clark Bridge to remain in the closed-to-navigation position
The bascule span of the bridge will have a containment system installed which will reduce the vertical clearance by 5 feet from 17.3 feet above mean high water to 12.3 feet above mean high water. Vessels able to pass through the bridge in the closed positions may do so at anytime. The bridge will be able to open for any emergency if a three-hour notice is given from 7 a.m. to 4 p.m. Monday through Saturday; on Sundays the bridge will be able to open in accordance with 33 CFR 117.899(c), and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the US 40-322 (Albany Avenue) Bridge across Inside Thorofare, NJICW mile 70.0, at Atlantic City, NJ. The deviation is necessary to facilitate the American Cancer Society Bike-a-thon. The deviation allows the bridge to remain in the closed position to vessels requesting a bridge opening to ensure the biker's safety and that there are no delays.
This deviation is effective from 8 a.m. to 4 p.m. on June 14, 2015.
The docket for this deviation [USCG-2015-0334] is available at
If you have questions on this temporary deviation, call or email Kashanda Booker, Bridge Management Specialist, Fifth Coast Guard District, telephone (757) 398-6227, email
The American Cancer Society on behalf of the New Jersey Department of Transportation has requested a temporary deviation from the current operating regulation of the US 40-322 (Albany Avenue) Bridge across Inside Thorofare, NJICW mile 70.0, at Atlantic City, NJ. The closure has been requested to ensure the safety of the bikers and spectators that will be participating in the American Cancer Society Bike-a-thon. Under this temporary deviation, the US 40-322 (Albany Avenue) Bridge will remain in the closed position from 8 a.m. to 4 p.m. on June 14, 2015.
The vertical clearance of this bascule bridge is 10 feet above mean high water in the closed position and unlimited in the open position. The current operating regulation is outlined at 33 CFR 117.733(f), which requires that the bridge shall open on signal, except that from 9 a.m. to 4 p.m. the draw need only open on the hour and half hour.
The majority of the vessels that transit the bridge this time of year are recreational boats. Vessels able to pass through the bridge in the closed positions may do so at any time. The bridge will be able to open for emergencies. The Atlantic Ocean is an alternate route for vessels with mast heights greater than 10 feet. The Coast Guard will inform the users of the waterway through our Local and Broadcast Notice to Mariners' of the closure periods so that vessels can plan their transits to minimize any impact caused by the temporary deviation. At all other times during the affected period, the bridge will operate as outlined at 33 CFR 117.733(f).
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to amend the federal Prevention of Significant Deterioration (PSD) program regulations to allow for rescission of certain PSD permits issued by the EPA and delegated reviewing authorities under Step 2 of the Prevention of Significant Deterioration and Title V Greenhouse Gas (GHG) Tailoring Rule (Tailoring Rule). We are taking this action in order to provide a mechanism for the EPA and delegated reviewing authorities to rescind PSD permits that are no longer required in light of the United States (U.S.) Supreme Court's decision in
This rule is effective on July 6, 2015 without further notice, unless the EPA receives adverse comment by June 8, 2015. If the EPA receives adverse comment, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2015-0071, by one of the following methods:
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•
•
•
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Questions concerning this direct final should be addressed to Mrs. Jessica Montañez, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Air Quality Planning Division, (C504-03), Research Triangle Park, NC 27711, telephone number (919) 541-3407, email at
The information in this
The EPA is publishing this rule without a prior proposed rule because we view this as a non-controversial amendment and anticipate no adverse comment. This action narrowly amends the permit rescission provisions in the federal PSD regulations found in 40 CFR 52.21(w) to allow for the rescission of EPA-issued PSD permits
The U.S. Supreme Court determined the permitting requirements under Step 2 of the Tailoring Rule to be invalid in
This direct final action does not itself rescind any permits; it only provides the regulatory mechanism through which the EPA or state or local program administering the PSD program through a delegation of federal authority from the EPA could rescind, upon request of a source, an EPA-issued Step 2 PSD permit consistent with the U.S. Supreme Court decision and the amended judgment of the D.C. Circuit vacating the regulations. However, in the “Proposed Rules” section of this
The entities potentially affected by this rule include new and modified stationary sources that obtained an EPA-issued Step 2 PSD permit under the federal PSD regulations found at 40 CFR 52.21 solely because the source or a modification of the source was expected to emit or increase GHG emissions over the applicable thresholds. This includes (1) sources classified as major for PSD purposes solely on the basis of their potential GHG emissions; and (2) sources emitting major amounts of other pollutants that experienced a modification resulting in an increase of only GHG emissions above the applicable levels in the EPA regulations. Entities affected by this rule may also include state or local reviewing authorities that have been delegated federal authority to implement the federal PSD regulations under 40 CFR 52.21(u) and that have issued Step 2 PSD permits to sources within their jurisdiction. This rule does not address the requirements for approval of a PSD program into a state implementation plan (40 CFR 51.166) or the rescission of PSD permits issued by states and local programs with such approved programs. Stationary sources with questions on the PSD permitting obligations arising from Step 2 PSD permits issued by state or local reviewing authorities under the permitting programs approved into state implementation plans should review the governing statutory provisions and provisions in the applicable approved state or local permitting program to determine how to address any Step 2 PSD permitting issues and consult with the EPA as necessary.
Part C of title I of the Act contains the requirements for a component of the major New Source Review (NSR) program known as the PSD program. This program sets forth procedures for the construction review and permitting of new and modified stationary sources of air pollution locating in areas meeting the National Ambient Air Quality Standards (NAAQS) (“attainment” areas) and areas for which there is insufficient information to classify an area as either attainment or nonattainment (“unclassifiable” areas).
The applicability of PSD to a particular source must be determined in advance of construction of a new source or major modification of an existing source and is pollutant-specific. Once a source is determined to be subject to PSD, among other requirements, the source must demonstrate that it will not cause or contribute to a violation of any NAAQS or PSD increment,
The reviewing authority must provide notice of its preliminary decision on a source's application for a PSD permit, and must provide an opportunity for comment by the public, industry, and other interested persons. After considering and responding to comments, the reviewing authority must issue a final determination on the permit.
On June 3, 2010, the EPA issued a final rule, known as the Tailoring Rule, which phased in permitting requirements for GHG emissions from stationary sources under the CAA PSD and title V permitting programs (75 FR 31514).
For Step 1 of the Tailoring Rule, which began on January 2, 2011, PSD or title V requirements applied to sources' GHG emissions only if the sources were subject to PSD or title V “anyway” due to their emissions of non-GHG pollutants. These sources are referred to as “anyway sources.” Step 2 of the Tailoring Rule, which began on July 1, 2011, applied the PSD and title V permitting requirements under the CAA to sources that were classified as major, and, thus, required to obtain a permit, based solely on their potential GHG emissions and to modifications of otherwise major sources that required a PSD permit because they increased only GHG above applicable levels in the EPA regulations.
On June 23, 2014, the U.S. Supreme Court issued a decision in
To describe the EPA's preliminary views on the U.S. Supreme Court decision, on July 24, 2014, the EPA issued a memorandum titled, “Next Steps and Preliminary Views on the Application of Clean Air Act Permitting Programs to Greenhouse Gases Following the Supreme Court's Decision in
The EPA provided additional views regarding EPA-issued Step 2 permits when it issued two memoranda on December 19, 2014. In the memorandum issued by the Office of Air and Radiation (OAR) and titled, “Next Steps for Addressing EPA-Issued Step 2 Prevention of Significant Deterioration Greenhouse Gas Permits and Associated Requirements” (OAR Next Steps Memo),
The Supreme Court decisions affirmed in part and reversed in part an earlier decision of the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in
We are aware that between the effective date of Step 2 (July 1, 2011) and the date of the
To implement the U.S. Supreme Court's decision and the amended appeals court judgment vacating the regulations implementing Step 2 of the Tailoring Rule, it is necessary to undertake a process to rescind PSD Step 2 permits. The EPA's implementing permitting regulations at 40 CFR 52.21 provide that “[a]ny [PSD] permit issued under this section or a prior version of this section shall remain in effect, unless and until it expires . . . or is rescinded” (40 CFR 52.21(w)(l)).
Section 52.21(w) provides authority for a source holding a PSD permit to request rescission of the permit and for the EPA to “grant an application for rescission if the applicant shows that this section [40 CFR 52.21] would not apply to the source or modification.” However, as currently written, the scope of this rescission authority is limited to permits issued under 40 CFR 52.21 as in effect on or before July 30, 1987. Since any EPA-issued Step 2 PSD permits were issued under regulations effective after July 30, 1987, the rescission authority in 40 CFR 52.21(w) is not currently available to sources with EPA-issued Step 2 PSD permits. This rulemaking action is a narrow revision to 52.21(w) solely to enable the rescission of Step 2 PSD permits consistent with the U.S. Supreme Court decision and the D.C. Circuit amended judgment.
This rule does not address any issues concerning the federal PSD permit rescission regulations at 40 CFR 52.21(w) that are not related to the Supreme Court decision in
In this action, the EPA is revising 40 CFR 52.21(w)(2) by adding references to 40 CFR 52.21(49)(b)(v)(a) and (b) to allow for rescission of any EPA-issued Step 2 PSD permits upon request by the permitted source, which is consistent with the EPA's understanding of the Supreme Court decision and the amended appeals court judgment vacating the regulations. In addition, the EPA is adding the following sentence to 40 CFR 52.21(w)(3) to make clear that PSD requirements no longer apply to Step 2 sources: “As a result of a decision of the U.S. Supreme Court, this section does not apply to sources or modifications that meet only the applicability criteria in 40 CFR 52.21(b)(49)(v).”
This regulatory action does not make any change to 40 CFR 52.21(w)(1) or (4). In addition, it does not affect the standard for determining whether a source is eligible for permit rescission under 40 CFR 52.21(w)(3). It serves only to revise 40 CFR 52.21(w)(2)-(3) of the EPA's federal PSD regulations to authorize the EPA to undertake permit rescissions for EPA-issued Step 2 PSD permits. As the EPA previously explained in its December 19, 2014, OAR Next Steps Memo, once this rule is final, sources with EPA-issued Step 2 PSD permits will be able to seek a permit rescission from the EPA or delegated state or local reviewing authority.
Specifically, consistent with the 2014 OAR Next Steps Memo at page 3, the EPA expects that PSD permit-holders interested in qualifying for the rescission of an EPA-issued Step 2 PSD permit under 40 CFR 52.21(w) will need to provide information to demonstrate that either (1) the source did not, at the time the source obtained its EPA-issued Step 2 PSD permit, emit or have the potential to emit any regulated pollutant other than GHGs above the major source threshold applicable to that type of source; or (2) a modification at a source emitting major amounts of a regulated NSR pollutant other than GHGs did not result in an increase in emissions of any regulated pollutant other than GHGs in an amount equal to or greater than the applicable significance level for that pollutant. Furthermore, the EPA intends to consider whether the EPA or another reviewing authority is relying on the EPA-issued Step 2 PSD permit for any other regulatory purpose. Rescission of a PSD permit that is no longer required should not extend to eliminate regulatory obligations that remain regarding non GHG-pollutants or inadvertently place the permitted source in a situation where it may be out of compliance with other requirements that the PSD permit satisfied. For example, as noted in the memoranda mentioned previously, a source with an EPA-issued Step 2 PSD permit may now have other regulatory or permitting obligations (
As part of the rescission process for EPA-issued Step 2 PSD permits, the EPA anticipates that some sources will also want to seek revisions to title V operating permits that include the EPA-issued Step 2 PSD permit terms and conditions. Therefore, once an EPA-issued Step 2 PSD permit is formally rescinded by the EPA or delegated reviewing authority, the EPA or delegated reviewing authority will encourage the applicable title V state or local permitting authorities to take appropriate actions with the sources to resolve any issues related to the incorporation of the EPA-issued PSD Step 2 permit requirements into title V permits that have already been issued and as further described in the OAR Next Steps Memo at page 4. The EPA is not revising its title V regulations in this action because the EPA believes that its existing title V regulations contain sufficient procedures for the actions discussed in the OAR Next Steps Memo and no revisions to EPA's title V regulations are necessary to enable these steps to proceed.
This action only contains the regulatory revisions necessary to allow for rescission of EPA-issued Step 2 PSD permits in order to conform to the U.S. Supreme Court decision and the amended judgment of the D.C. Circuit. In this action, the EPA is not making any other regulatory changes in response to the U.S. Supreme Court's decision or the amended judgment of the D.C. Circuit. The EPA intends to take additional rulemaking action to remove the vacated provisions from the Code of Federal Regulations and make further revisions to its PSD and title V regulations, as appropriate.
This action amends one provision of the federal PSD program regulations to allow for the rescission of EPA-issued Step 2 PSD permits in order to conform to a decision by the U.S. Supreme Court that declared invalid regulations that implemented the requirement that Step 2 sources obtain PSD permits and an amended judgment by the D.C. Circuit vacating those regulations. When effective, this action will authorize the EPA and delegated reviewing authorities to rescind Step 2 PSD permits in response to requests from applicants who can demonstrate that they are eligible for permit rescission. Therefore, this action itself does not compel any specific permit action that will affect the fair treatment and meaningful involvement of all people. Rather, it ensures that the EPA has the authority to implement the U.S. Supreme Court's decision and the amended judgment of the D.C. Circuit. Rescission of any EPA-issued Step 2 PSD permits under this rule revision would follow all applicable permitting requirements.
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
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 number 2060-0003.
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. This rule relieves regulatory burden by providing a mechanism for the EPA and delegated reviewing authorities to rescind PSD permits that are no longer required in light of the U.S. Supreme Court decision in
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector to rescind these EPA-issued Step 2 PSD permits. Sources can ask for rescission of their EPA-issued Step 2 PSD permits at their discretion.
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. Although the Tribal Air Rule (76 FR 38748, July 1, 2011) under the CAA gives tribes the opportunity to request and be granted delegation of the federal PSD program found at 40 CFR 52.21 to issue PSD permits, there are no tribal agencies currently implementing the federal PSD permitting program. As a result, this action will not affect any tribal reviewing authorities. In addition, any tribally-owned sources with EPA-issued Step 2 PSD permits have the discretion to request the EPA to rescind their permit. Thus, Executive Order 13175 does not apply to this action.
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 rulemaking does not involve technical standards.
The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. The results of this evaluation are contained in the section VI titled, “Environmental Justice Considerations” for this action.
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 U.S. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Pursuant to CAA section 307(d)(1)(V), the Administrator determines that this action is subject to provisions of section 307(d). Section 307(d) establishes procedural requirements specific to rulemaking under the CAA. Section 307(d)(1)(V) provides that the provisions of section 307(d) apply to “such other actions as the Administrator may determine.”
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the U.S. Court of Appeals for the D.C. Circuit within 60 days from May 7, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time 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 (
Parties with objections to this direct final rule are encouraged to file any comment in response to the parallel notice of proposed rulemaking for this action published in the “Proposed Rules” section of this
Environmental protection, Air pollution control, Carbon monoxide, Greenhouse gases, Incorporation by reference, Intergovernmental relations, Lead, National ambient air quality standards, New source review, Nitrogen dioxide, Ozone, Particulate matter, Permit rescissions, Preconstruction permitting, Sulfur oxides, Tailoring rule, Volatile organic compounds.
For the reasons stated in the preamble, title 40, Chapter I of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(w) * * *
(2) Any owner or operator of a stationary source or modification who holds a permit for the source or modification may request that the Administrator rescind the permit or a particular portion of the permit if the permit for the source or modification was issued:
(i) Under § 52.21 as in effect on July 30, 1987 or any earlier version of this section;
(ii) Under § 52.21 between July 1, 2011 and July 6, 2015 to a source that was classified as a major stationary source under paragraph (b)(1) of this section solely on the basis of potential emissions of greenhouse gases, which were defined as a regulated NSR pollutant through the application of paragraph (b)(49)(v)(a) of this section as in effect during this time period; or
(iii) Under § 52.21 between July 1, 2011 and July 6, 2015 for a modification that was classified as a major modification under paragraph (b)(2) solely on the basis of an increase in emissions of greenhouse gases, which were defined as a regulated NSR pollutant through the application of paragraph (b)(49)(v)(b) of this section as in effect during this time period.
(3) The Administrator shall grant an application for rescission if the application shows that this section would not apply to the source or modification. As a result of a decision of the United States Supreme Court, this section does not apply to sources or modifications that meet only the applicability criteria in paragraph (b)(49)(v) of this section.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving under the Federal Clean Air Act (CAA) revisions to the Albuquerque/Bernalillo County, New Mexico State Implementation Plan (SIP). These revisions add definitions and clarifying changes to the general provisions and add a new emissions inventory regulation that establishes reporting requirements for stationary sources in Albuquerque/Bernalillo County.
This rule is effective on June 8, 2015.
EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2008-0636. All documents in the docket are listed on the
Mr. John Walser (6PD-L), Air Planning Section, telephone (214) 665-7128, email:
Throughout this document, “we,” “us,” and “our” means EPA.
The background for today's action is discussed in detail in our February 2, 2015 direct final rule and proposal (80 FR 5471). The rule and proposal stated that if any relevant adverse comments were received by the end of the public comment period on March 4, 2015, the direct final rule would be withdrawn and we would respond to the comments in a subsequent final action. A relevant adverse comment was received during the comment period, and the direct final rule was withdrawn on March 26, 2015 (80 FR 15901). Our February 2, 2015 proposal provides the basis for today's final action. The SIP revisions proposed for approval add definitions and clarifying changes to the general provisions and add a new emissions inventory regulation that establishes reporting requirements for stationary sources in Albuquerque/Bernalillo County.
We received one comment letter dated February 20, 2015, from the Sierra Club, regarding our direct final rule.
Comment: “Acting regional administrator Sam Coleman cannot sign approvals, disapprovals, or any combination of approvals or disapproval, in whole or in part, due to the fact that agency actions on state implementation plans are required to be signed by the regional administrator, Ron Curry, not the current deputy regional administrator as stated in the agency's delegations manual. The manual specifically states that SIP actions can't be redelegated from the regional administrator.”
Response: As the Acting Regional Administrator, Deputy Regional Administrator Sam Coleman had authority to sign the proposal and direct final action on this State Implementation Plan. On January 15, 2015, the day that the proposal and direct final action were signed, Sam Coleman was acting in the capacity of the Regional Administrator for Ron Curry, who was absent from Region 6 at the time. The following language is listed in the Region 6 Deputy Regional Administrator's position description “In the absence of the Regional Administrator, the Deputy Regional Administrator will perform the duties of the Regional Administrator.” A copy of the Deputy Regional Administrator's position description is included in the docket for this rulemaking. Further, EPA Region 6 Order 1110.11 establishes a line of succession to perform the duties of the Regional Administrator should the Regional Administrator be absent from the office. The Deputy Regional Administrator is the first person listed on that line of succession. A copy of EPA Region 6 Order 1110.11 is included in the docket for this rulemaking.
The heads of administrative agencies are statutorily vested with the authority to delegate authorities to subordinate officials, 5 U.S.C. 302. Federal Courts have held that rules, including internal
The comment only challenged the Deputy Regional Administrator's authority to sign the Direct Final Action. EPA received no other comments or challenges as to the substance of the proposal or direct final. Therefore, we are finalizing our action to approve this SIP amendment.
Pursuant to section 110 of the Act, EPA is approving five revisions to the New Mexico SIP that were submitted on May 6, 2008, November 6, 2009,
In this rule, we are finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.4, we are finalizing the incorporation by reference of the revisions to the Albuquerque/Bernalillo County regulations as described in the Final Action of this rule. 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, 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 6, 2015. 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, Intergovernmental relations, Nitrogen dioxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency.
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve a request from the state of Alabama for the EPA to relax the Reid Vapor Pressure (RVP) standard applicable to gasoline introduced into commerce from June 1 to September 15 of each year for Jefferson and Shelby counties (“the Birmingham area”). Specifically, the EPA is approving amendments to the regulations to change the RVP standard for the Birmingham area from 7.8 pounds per square inch (psi) to 9.0 psi for gasoline. The EPA has determined that this change to the federal RVP regulation is consistent with the applicable provisions of the Clean Air Act (CAA). This action is being taken without prior proposal because the EPA believes that this rulemaking is noncontroversial for the reasons set forth in this preamble, and due to the limited scope of this action.
This rule is effective on July 6, 2015 without further notice unless the EPA receives adverse comment by June 8, 2015. If the EPA receives such comments, the EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2014-0905, by one of the following methods:
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•
•
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Patty Klavon, Office of Transportation and Air Quality, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, Michigan, 48105; telephone number: (734) 214-4476; fax number: (734) 214-4052; email address:
The contents of this preamble are listed in the following outline:
The EPA is making this revision as a direct final rule without prior proposal because the EPA views this revision as noncontroversial and anticipates no adverse comment. The rationale for this rulemaking is described in detail below. In the Proposed Rules section of this
Entities potentially affected by this rule are fuel producers and distributors who do business in Alabama.
The
Do not submit CBI to the EPA through
When submitting comments, remember to:
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
You may be required to pay a reasonable fee for copying docket materials.
This direct final rule approves a request from the state of Alabama to change the summertime RVP standard for Jefferson and Shelby counties (“the Birmingham area”) from 7.8 psi to 9.0 psi by amending the EPA's regulations at 40 CFR 80.27(a)(2). In a previous rulemaking, the EPA approved a state implementation plan (SIP) revision from the state of Alabama which provided a technical demonstration that relaxing the federal RVP requirement from 7.8 psi to 9.0 psi for gasoline sold from June 1 to September 15 of each year in the Birmingham area would not interfere with maintenance of the national ambient air quality standards (NAAQS) in the Birmingham area. For more information on Alabama's SIP revision, please refer to the April 17, 2015 rulemaking (80 FR 21170).
The preamble for this rulemaking is organized as follows: Section III. provides the history of the federal gasoline volatility regulation. Section IV. describes the policy regarding relaxation of volatility standards in ozone nonattainment areas that are redesignated as attainment areas. Section V. provides information specific to Alabama's request for the Birmingham area. Finally, Section VI. presents the final action in response to Alabama's request.
On August 19, 1987 (52 FR 31274), the EPA determined that gasoline nationwide was becoming increasingly volatile, causing an increase in
The most common measure of fuel volatility that is useful in evaluating gasoline evaporative emissions is RVP. Under CAA section 211(c), the EPA promulgated regulations on March 22, 1989 (54 FR 11868) that set maximum limits for the RVP of gasoline sold during the regulatory control periods that were established on a state-by-state basis in the final rule. The regulatory control periods addressed the portion of the year when peak ozone concentrations were expected. These regulations constituted Phase I of a two-phase nationwide program, which was designed to reduce the volatility of gasoline during the high ozone season. On June 11, 1990 (55 FR 23658), the EPA promulgated more stringent volatility controls as Phase II of the volatility control program. These requirements established maximum RVP standards of 9.0 psi or 7.8 psi (depending on the state, the month, and the area's initial ozone attainment designation with respect to the 1-hour ozone NAAQS).
The 1990 CAA Amendments established a new section 211(h) to address fuel volatility. CAA section 211(h) requires the EPA to promulgate regulations making it unlawful to sell, offer for sale, dispense, supply, offer for supply, transport, or introduce into commerce gasoline with an RVP level in excess of 9.0 psi during the high ozone season. CAA section 211(h) also prohibits the EPA from establishing a volatility standard more stringent than 9.0 psi in an attainment area, except that the EPA may impose a lower (more stringent) standard in any former ozone nonattainment area redesignated to attainment.
On December 12, 1991 (56 FR 64704), the EPA modified the Phase II volatility regulations to be consistent with CAA section 211(h). The modified regulations prohibited the sale of gasoline with an RVP above 9.0 psi in all areas designated attainment for ozone, effective January 13, 1992. For areas designated as nonattainment, the regulations retained the original Phase II standards published on June 11, 1990 (55 FR 23658), which included the 7.8 psi ozone season limitation for certain areas. As stated in the preamble to the Phase II volatility controls and reiterated in the proposed change to the volatility standards published in 1991, the EPA will rely on states to initiate changes to their respective volatility programs. The EPA's policy for approving such changes is described below in Section IV. of this action.
The state of Alabama has initiated this change by requesting that the EPA relax the 7.8 psi RVP standard to 9.0 psi for the Birmingham area, which is subject to the 7.8 psi RVP requirement during the summertime ozone season. Accordingly, the state of Alabama provided a technical demonstration showing that relaxing the federal RVP requirement in the Birmingham area from 7.8 psi to 9.0 psi would not interfere with maintenance of the NAAQS or any other applicable requirement of the CAA. See Section V. of this action for information specific to Alabama's request for the Birmingham area.
As stated in the preamble for the EPA's amended Phase II volatility standards (56 FR 64706), any change in the volatility standard for a nonattainment area that was subsequently redesignated as an attainment area must be accomplished through a separate rulemaking that revises the applicable standard for that area. Thus, for former 1-hour ozone nonattainment areas where the EPA mandated a Phase II volatility standard of 7.8 psi RVP in the December 12, 1991 rulemaking, the federal 7.8 psi RVP requirement remains in effect, even after such an area is redesignated to attainment, until a separate rulemaking is completed that relaxes the federal RVP standard in that area from 7.8 psi to 9.0 psi.
As explained in the December 12, 1991 rulemaking, the EPA believes that relaxation of an applicable RVP standard is best accomplished in conjunction with the redesignation process. In order for an ozone nonattainment area to be redesignated as an attainment area, CAA section 107(d)(3) requires the state to make a showing, pursuant to CAA section 175A, that the area is capable of maintaining attainment for the ozone NAAQS for ten years. Depending on the area's circumstances, this maintenance plan will either demonstrate that the area is capable of maintaining attainment for ten years without the more stringent volatility standard or that the more stringent volatility standard may be necessary for the area to maintain its attainment with the ozone NAAQS. Therefore, in the context of a request for redesignation, the EPA will not relax the volatility standard unless the state requests a relaxation and the maintenance plan demonstrates to the satisfaction of the EPA that the area will maintain attainment for ten years without the need for the more stringent volatility standard.
Alabama did not request relaxation of the federal RVP standard from 7.8 psi to 9.0 psi when the Birmingham area was redesignated to attainment for either the 1-hour ozone NAAQS or the 1997 ozone NAAQS. However, Alabama took a conservative approach in developing maintenance plans associated with those redesignation requests by estimating emissions using a federal RVP requirement of 9.0 psi.
In a May 12, 2006 final rule, the EPA approved the Birmingham area's redesignation request and maintenance plan for the 1997 ozone NAAQS. See 71 FR 27631 (May 12, 2006).
On March 2, 2012, the state of Alabama, through the Alabama Department of Environmental Management (ADEM), submitted a proposed revision to Alabama's SIP
On November 14, 2014, the state of Alabama submitted a proposed revision to its SIP demonstrating that removal of the federal RVP requirement of 7.8 psi for gasoline during the summer ozone season in the Birmingham area would not interfere with maintenance of any NAAQS. Specifically, the state provided a technical demonstration showing that relaxing the federal RVP requirements in the Birmingham area from 7.8 psi to 9.0 psi would not interfere with maintenance of the NAAQS or with any other applicable requirement of the CAA.
The EPA evaluated and approved Alabama's November 14, 2014 SIP revision in a previous rulemaking that was subject to public notice-and-comment. The EPA received two comments on that rulemaking, and those comments were addressed in the final rule for that rulemaking. See 80 FR 21170 (April 17, 2015). The comments received can be found in the docket for that rulemaking (EPA-R04-OAR-2014-0867).
In this action, the EPA is approving Alabama's request to relax the summertime ozone season RVP standard for the Birmingham area from 7.8 psi to 9.0 psi. This is based on the previous approval of Alabama's November 14, 2014 SIP revision, and the fact that the Birmingham area is currently in attainment for all ozone NAAQS.
The EPA is taking direct final action to approve the request from Alabama for the EPA to relax the RVP applicable to gasoline introduced into commerce from June 1 to September 15 of each year in the Birmingham area. Specifically, this action amends the applicable RVP standard from 7.8 psi to 9.0 psi provided at 40 CFR 80.27(a)(2) for the Birmingham area (
The EPA is making this revision without prior proposal because the EPA views the revision as noncontroversial and anticipates no adverse comment. However, in the Proposed Rules section of this
If the EPA receives adverse comments on the rule or any portion of the rule, the EPA will withdraw the direct final rule or the portion of the rule that received adverse comment. The EPA will publish a timely withdrawal in the
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563. (76 FR 3821, January 21, 2011).
This action does not impose any new information collection burden under the provisions of the
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 subject to the requirements of this action are refiners, importers or blenders of gasoline that choose to produce or import low RVP gasoline for sale in the Birmingham area and gasoline distributers and retail stations in the Birmingham area. This action relaxes the federal RVP standard for gasoline sold in the Birmingham area during the summertime ozone season (June 1 to September 15 of each year) from 7.8 psi to 9.0 psi. This rule does not impose any requirements or create impacts on small entities beyond those, if any, already required by or resulting from the CAA section 211(h) Volatility Control program. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.
This final rule does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action implements mandates specifically and explicitly set forth in CAA section 211(h) without the exercise of any policy discretion by the EPA.
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 (65 FR 67249, November 9, 2000). This final rule affects only those refiners, importers or blenders of gasoline that choose to produce or import low RVP gasoline for sale in the Birmingham area and gasoline distributers and retail stations in the Birmingham area. Thus, Executive Order 13175 does not apply to this action.
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 approves a state program.
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This action does not involve technical standards.
The EPA believes the human health or environmental risk addressed by this action will
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
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 June 8, 2015. Filing a petition for reconsideration by the Administrator of this direct final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel document of proposed rulemaking for this action published in the Proposed Rules section of this
The statutory authority for this action is granted to the EPA by Sections 211(h) and 301(a) of the Clean Air Act, as amended; 42 U.S.C. 7545(h) and 7601(a).
Environmental protection, Administrative practice and procedures, Air pollution control, Fuel additives, Gasoline, Motor vehicle and motor vehicle engines, Motor vehicle pollution, Penalties, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Environmental Protection Agency is amending 40 CFR part 80 as follows:
42 U.S.C. 7414, 7521, 7542, 7545, and 7601(a).
The revisions and additions read as follows:
(a) * * *
(2) * * *
(ii) * * *
Office of the Secretary (OST), U.S. Department of Transportation (DOT).
Final rule; correction.
This document corrects two typographical errors in the final rule that appeared in the
This document is effective July 13, 2015.
Jill Laptosky, Office of the General Counsel, 1200 New Jersey Avenue SE., Washington, DC 20590, Room W96-488, (202) 493-0308,
In FR Doc. 2015-05646 of March 13, 2015 (80 FR 13253), there were two typographical errors, which are identified and corrected in the Correction of Errors section below. The provisions in this correction document are effective as if they had been included in the document that appeared in the March 13, 2015
In FR Doc. 2015-05646 of March 13, 2015 (80 FR 13253), make the following corrections:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Announcement of location for installation of electronic monitoring equipment.
NMFS is announcing that the final location for the May 2015 installations of electronic monitoring (EM) systems required by Amendment 7 will be Fairhaven, MA, in addition to the previously-announced Barnegat Light, NJ. NMFS is also informing vessel owners with Atlantic tunas permits that funding for such EM installation and training is now available on a `first come, first served' basis for a limited number of pelagic longline vessels that were not eligible for Individual Bluefin Quota (IBQ) based on criteria in Amendment 7 to the 2006 Consolidated HMS FMP (Amendment 7). Funding for EM installation and training originally was limited to the 135 vessels eligible for IBQ shares.
See
Installation of EM systems and equipment during May 2015 is scheduled at the following ports: Fairhaven, MA, and Barnegat Light, NJ. See
Thomas Warren or Brad McHale at 978-281-9260; or Craig Cockrell at 301-427-8503.
Atlantic tuna fisheries are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act (ATCA). Under the Magnuson-Stevens Act, NMFS must manage fisheries to maintain optimum yield on a continuing basis while preventing overfishing. ATCA authorizes the Secretary of Commerce (Secretary) to promulgate regulations as may be necessary and appropriate to carry out recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT). The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NMFS. Management of these species is described in the 2006 Consolidated HMS FMP, which is implemented by regulations at 50 CFR part 635. Amendment 7 to the 2006 Consolidated HMS FMP may be found online at:
On December 2, 2014, NMFS published the final rule for Amendment 7 to the 2006 Consolidated HMS FMP to, among other things, take actions related to the operation and management of the Atlantic bluefin tuna fishery, including measures applicable to the pelagic longline fishery, such as establishing IBQs and expanding monitoring requirements, including electronic monitoring by camera (79 FR 71510). The regulations implementing the final rule require that an owner or operator of a commercial vessel permitted or required to be permitted in the Atlantic Tunas Longline category and that has pelagic longline gear on board have installed, operate, and maintain an EM system on the vessel. Although most Amendment 7 measures were effective as of January 1, 2015, EM installation must be completed by June 1, 2015, to fish with pelagic longline gear. To facilitate compliance with these requirements and ease any burden on vessel owners, NMFS identified funding for EM equipment, installation and training for the 135 vessels eligible for IBQ under Amendment 7 criteria. NMFS scheduled multiple dates and locations for installation and training on the operation of EM equipment during the months of January through May (79 FR 78310; December 30, 2014). The dates and locations were chosen to reduce the potential for interference with fishing trips and to minimize the distances vessels may have to travel. One of the two locations during the scheduled May time periods (May 11-17; and 19-25) was left undetermined to provide
To encourage vessels to sign up for installation and determine how many of the eligible 135 vessels intended to have an EM system installed, NMFS notified the pelagic longline fleet and set an administrative deadline of April 20, 2015, for eligible vessels to sign up for installation. Based on the number of vessels that already installed EM systems or signed up for installation by the deadline, NMFS has determined that funds are available to pay for installation of EM equipment on a limited number of vessels with a valid Atlantic Tunas Longline permit that were not eligible for IBQ shares under Amendment 7 (“non-eligible vessels”). Funding for non-eligible vessels is not guaranteed and will be available on a `first come-first served' basis, as determined by the date scheduled and agreed upon by the vessel owner/operator and Saltwater, Inc. All vessel owners and/or operators must call Saltwater, Inc., the NMFS-approved contractor, at 800-770-3241, to schedule EM installation and training for their vessels at one of the ports specified in Table 1, and to discuss logistics (time, precise location, etc.) with the contractor. All vessel owners and/or operators must call at least a week in advance of the desired date of installation, but are encouraged to contact Saltwater Inc. as soon as possible.
If a vessel owner and/or operator of a pelagic longline vessel is not able to coordinate installation with the NMFS-approved contracter, Saltwater, Inc., on one of the dates and locations listed in Table 1, the vessel operator is advised to contact Saltwater, Inc., as soon as possible to determine whether another mutually-agreed upon location and date is possible for installation and training. NMFS cannot guarantee that an alternate date will be possible given the limited funding and time available to complete installation of and training on the operation of the EM equipment. Therefore, vessel owners and/or operators will be advised make a concerted effort to adhere to the EM installation schedule in Table 1.
16 U.S.C. 971
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of petition to extend test procedure compliance date and request for comment.
This notice announces a petition from Williams Furnace Company (Williams) requesting that the Department of Energy (DOE) extend the compliance date for the direct home heating equipment and pool heaters test procedure final rule published on January 6, 2015 by 180 days, with respect to Williams. The compliance date for the direct home heating equipment and pool heaters test procedure final rule is July 6, 2015. Williams states in its petition that due to a clarification in the vented home heating equipment test procedure, this timeframe for compliance does not provide Williams sufficient time to conduct further testing and complete any required design modifications to meet the standard using the new test procedure. DOE seeks comment on Williams' petition to extend the compliance date, with respect to Williams, for the direct heating equipment test procedure by 180 days.
DOE will accept comments with respect to Williams' petition until May 22, 2015.
The docket is available for review at
A link to the docket Web page can be found at:
For information on how to review the docket, contact Ms. Brenda Edwards at (202) 586-2945 or by email:
Mr. John Cymbalsky, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-1692. Email:
Sarah Butler, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-1777. Email:
DOE published a final rule on January 6, 2015 amending the test procedures for vented home heating equipment and pool heaters (referred to hereafter as “2015 test procedure final rule”). 80 FR 792. Pursuant to 42 U.S.C. 6293(c)(2), effective 180 days after DOE prescribes or establishes a new or amended test procedure, manufacturers must make representations of energy efficiency, including certifications of compliance, using that new or amended test procedure. Accordingly, the mandatory compliance date for the 2015 test procedure final rule is July 6, 2015. The Energy Policy and Conservation Act of 1975 (EPCA), Public Law 94-163 (codified at 42 U.S.C. 6291-6309) provides that on the petition of any manufacturer, distributor, retailer, or private labeler, filed not later than the 60th day before the expiration of the period involved, the 180-day period may be extended by the Secretary with respect to the petitioner (but in no event for more than an additional 180 days) if the Secretary determines that the requirements under 42 U.S.C. 6293(c)(2) would impose an undue hardship on such petitioner. (42 U.S.C. 6293(c)(3))
On March 19, 2015, DOE received a petition from Williams requesting that DOE extend the compliance date of the 2015 test procedure final rule by 180 days, with respect to Williams. The basis of the petition is DOE's clarification that section 4.3, “Annual fuel utilization efficiency by the tracer gas method,” of the vented home heating equipment test procedure located at Appendix O to Subpart B of Part 430 (section 4.3), applies only to vented home heating equipment equipped with thermal stack dampers. Under the amended test procedure, only vented home heating equipment equipped with thermal stack dampers may use the tracer gas method to test annual fuel utilization efficiency (AFUE). Williams states in the petition that based on its observations at a third party lab, it has been using the tracer gas test method to test vented home heating equipment not equipped with thermal stack dampers since 2011. According to the petition, due to the clarification to section 4.3, the compliance time frame to transition to the amended test procedure does not provide Williams sufficient time to conduct further testing and complete any necessary design modifications to its models of vented home heating equipment without thermal stack dampers. Williams states that without the 180-day extension of the July 6, 2015 compliance date, it could potentially be at a competitive disadvantage in the heater marketplace. Williams states that granting the extension will remove the burden of conducting the aforementioned testing and possible design modifications by July 6, 2015 and will allow Williams the necessary time to manage the transition to the amended vented home heating equipment test procedure.
DOE seeks comment on Williams' petition to extend the July 6, 2015 compliance date for the 2015 test procedure final rule by 180 days, with respect to Williams.
This firm represents Williams Furnace Company (Williams) and respectfully submits this Petition to Extend Implementation Date of July 6, 2015 on behalf of Williams.
In the Energy Conservation Program for Consumer Products: Test Procedures for Direct Heating Equipment and Pool Heaters; Final Rule, FR, Vol. 80, No. 3 (6 Jan. 2015), pp. 792-815, the U.S. Department of Energy (DOE) issued a notice of a Final Rule revising the annual flue utilization efficiency (AFUE) test procedures for vented direct heating equipment and pool heaters. The Final Rule became effective February 5, 2015 and compliance becomes mandatory starting July 6, 2015. For the following reasons, Williams requests a 180-day extension of the July 6, 2015 effective date, which is the maximum allowed by statute.
Section 4.3 of the Final Rule, “Annual fuel utilization efficiency by the tracer gas method” has been changed to apply only to vented heaters equipped with thermal stack dampers. FR, Vol. 80, No. 3 (6 Jan. 2015), p. 811. Prior to the recent change, the AFUE test procedures stated that “All other types of vented heaters can elect to use the following tracer gas method, as an optional procedure.” It appears that DOE believes that heater manufacturers do not use the tracer gas method to test heaters without thermal stack dampers and do not use such testing results to calculate the AFUE for such units. Therefore, it appears that the DOE considers this a clarification of the AFUE test procedure and not a change to the AFUE test procedure.
In FR, Vol. 80, No. 3, Section III.C.3. Other Issues, page 798, the DOE states the following:
“For the reasons described previously, DOE clarifies that the optional use of the tracer gas method does not apply to units without thermal stack dampers. DOE has determined this clarification will not impose any additional burden on manufacturers, since units without thermal stack dampers are already commonly rated using the calculation method in 4.1 or 4.2. Moreover, the DOE has determined that disallowing the tracer gas method for units without thermal stack dampers will not affect efficiency ratings, since it is highly unlikely that manufacturers have rated units without thermal stack dampers using the tracer gas method.”
Though Williams agrees with the concept of the DOE's “clarification” of the AFUE test procedures for vented heaters without thermal stack dampers, the Final Rule clarification presents a significant issue for Williams and places an unnecessary burden on our company. Williams is a long-time furnace manufacturer which has been in business nearly 100 years. All of Williams' vented heaters are manufactured without thermal stack dampers. Williams has used the tracer gas method for testing AFUE in its vented heaters without thermal stack dampers since May 2011.
Williams began to use the tracer gas method to test the AFUE in its vented heaters without thermal stack dampers after visiting Intertek Testing Services, Inc. (Intertek) in Cortland, NY, on March 15, 2011. Jesus Rios of Williams met with Intertek's Gregory King and Daniel Bilodeau to discuss and to confirm that Williams' test method for AFUE testing for vented heaters without thermal stack dampers was identical to Intertek's test method for AFUE testing for vented heaters without thermal stack dampers. As you know, Intertek Testing Services, Inc. is the facility approved by and utilized by the DOE.
While at Intertek, Jesus Rios noticed that Intertek was using a different test method for AFUE testing of vented heaters without thermal stack dampers than Williams was using. Jesus Rios asked Intertek what test method Intertek was using for AFUE testing of vented heaters without thermal stack dampers. Intertek confirmed to Jesus Rios that Intertek was using the tracer gas method to test the AFUE in vented heaters without thermal stack dampers. Subsequently, upon Jesus Rios' return to Williams' facility in Colton, CA, he researched the tracer gas method and contacted Intertek to find out what equipment was necessary to perform the tracer gas method to test the AFUE in vented heaters without thermal stack dampers. Thereafter, Williams purchased the necessary equipment to perform the trace gas method to test the AFUE in vented heaters without thermal stack dampers.
In May 2011, Williams began using the tracer gas method to test the AFUE in vented heaters without thermal stack dampers after conducting some test runs to make sure Williams was performing the tracer gas method test properly and could confirm that the Williams' tracer as method test results were similar to the tracer gas method test results achieved by Intertek on March 15, 2011, when Intertek tested the Williams' vented heaters without thermal stack dampers. Williams has been using the tracer gas method to test the AFUE in vented heaters without thermal stack dampers continuously since May 2011 up to the present time. The tracer gas method procedure allows for an actual measurement of the draft factor using carbon monoxide, instead of using a standard draft factor of one. Williams believes that the tracer gas method is a more accurate measurement of the AFUE.
The time frame from now to July 6, 2015, does not provide Williams sufficient time to conduct further testing of and to complete any required design modification to any models of Williams' vented heaters without thermal stack dampers that might be marginally close to passing the required AFUE standards because of the implementation of the Final Rule disallowing the tracer gas method to test the AFUE in vented heaters without thermal stack dampers. Without the 180-day extension of the July 6, 2015 effective date in order to perform the afore-stated testing of and any necessary design modification to its products, Williams could potentially be at a competitive disadvantage in the heater marketplace.
An extension of the July 6, 2015 date does not disadvantage consumers or hamper the DOE's regulatory activities. Granting the extension of time will allow Williams to improve its products where necessary and to ensure Williams' compliance with the required AFUE standards. Delaying the July 6, 2015 date by 180 days will remove the unnecessary burden on Williams of having to conduct testing on all of models of Williams' vented heaters without thermal stack dampers in the next three and one-half months and will allow Williams the necessary time to manage the transition to the Final Rule revising the AFUE test procedures. For the foregoing reasons, Williams requests that the DOE grant Williams a 180-day extension of the July 6, 2015 effective date of the Final Rule.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of open meetings and webinars.
This document announces a series of meetings of the Commercial Package Air Conditioners and Commercial Warm Air Furnaces Working Group (CAUC CWAF Working Group). The Federal Advisory Committee Act requires that agencies publish notice of an advisory committee meeting in the
See
Unless otherwise specified in the
John Cymbalsky, ASRAC Designated Federal Officer, U.S. Department of Energy (DOE), Office of Energy Efficiency and Renewable Energy, 950 L'Enfant Plaza SW., Washington, DC, 20024. Email:
The meetings will be held:
Members of the public are welcome to observe the business of the meeting and, if time allows, may make oral statements during the specified period for public comment. To attend the meeting and/or to make oral statements regarding any of the items on the agenda, email
Due to the REAL ID Act implemented by the Department of Homeland Security (DHS) recent changes regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. Driver's licenses from the following states or territory will not be accepted for building entry and one of the alternate forms of ID listed below will be required.
DHS has determined that regular driver's licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, Louisiana, New York, American Samoa, Maine, Oklahoma, Arizona, Massachusetts, Washington, and Minnesota.
Acceptable alternate forms of Photo-ID include: U.S. Passport or Passport Card; An Enhanced Driver's License or Enhanced ID-Card issued by the states of Minnesota, New York or Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Driver's License); A military ID or other Federal government issued Photo-ID card.
Commodity Futures Trading Commission.
Notice of proposed rulemaking.
The Commodity Futures Trading Commission (the “Commission” or the “CFTC”) is proposing to amend the trade option exemption in its regulations, as described herein, in the following subject areas: Reporting requirements for trade option counterparties that are not swap dealers or major swap participants; recordkeeping requirements for trade option counterparties that are not swap dealers or major swap participants; and certain non-substantive amendments.
Comments must be received on or before June 8, 2015.
You may submit comments, identified by RIN 3038-AE26, by any one of the following methods:
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•
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Please submit your comments using only one of these methods.
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of a submission from
David N. Pepper, Special Counsel, Division of Market Oversight, at (202) 418-5565 or
In April 2012, pursuant to section 4c(b) of the Commodity Exchange Act
In response to requests from commenters, the Commission added a limited exception to this general rule for physically delivered commodity options purchased by commercial users of the commodities underlying the options (the “trade option exemption”).
Commodity option transactions that meet these requirements are generally exempt from the provisions of the Act and any Commission rule, regulation, or order promulgated or issued thereunder, otherwise applicable to any other swap, subject to the conditions enumerated in § 32.3(b)-(d).
In adopting § 32.3, the Commission stated that the trade option exemption is generally intended to permit parties to hedge or otherwise enter into commodity option transactions for commercial purposes without being subject to the full Dodd-Frank swaps regime.
The Commission further explained that the applicable conditions in § 32.3(b)-(d) were primarily intended to preserve a level of visibility into the market for trade options while still reducing the regulatory compliance burden for trade option participants.
In the year following the Commission's adoption of the trade option exemption, the Commission's Division of Market Oversight (“DMO”) issued a series of no-action letters granting relief from certain conditions
Based on DMO's experience with the trade option exemption following the issuance of No-Action Letter 13-08, and after a review of comments from market participants,
The Commission is proposing modifications to the recordkeeping and reporting requirements in § 32.3(b) that are applicable to trade option counterparties that are Non-SD/MSPs, as well as a non-substantive amendment to § 32.3(c) to eliminate the reference to the now-vacated part 151 position limits requirements. These proposed amendments are generally intended to relax reporting and recordkeeping requirements where two commercial parties enter into trade options with each other in connection with their respective businesses while maintaining regulatory insight into the market for unreported trade options. The Commission requests comment on all aspects of its proposal.
Pursuant to § 32.3(b)(1), the determination as to whether a trade option must be reported pursuant to part 45 is based on the status of the parties to the trade option and whether or not they have previously reported swaps to an appropriate swap data repository (“SDR”) pursuant to part 45.
To the extent that neither counterparty to a trade option has previously submitted reports to an SDR as a result of its swap trading activities as described above, then such trade option is not required to be reported pursuant to part 45. Instead, § 32.3(b)(2) requires that each counterparty to an otherwise unreported trade option (
Commenters have generally expressed the opinion that the reporting requirements in § 32.3(b) are overly burdensome for Non-SD/MSPs. Commenters have argued that these costs have discouraged commercial end users from entering into trade options to meet their commercial and risk management needs, thereby reducing liquidity and raising prices.
With respect to the part 45 reporting requirements, commenters have noted that Non-SD/MSPs may be required to comply with part 45 solely on the basis of the “unusual circumstance” of having had to report a single historical or inter-affiliate swap during the same twelve-month period.
With respect to Form TO reporting, commenters have argued that it is costly and burdensome for Non-SD/MSPs, particularly for small end users, to track, calculate and assemble the requisite data. Commenters have explained that the systems and processes used by many Non-SD/MSPs to create, store, and track their trade options are separate and distinct from their financial systems and are typically not designed to track the kind of information required by Form TO.
As discussed above, Commission regulation § 32.3(b)(1) requires that a Non-SD/MSP counterparty to a trade option that has become obligated to report a non-trade option swap within the past calendar year must comply with part 45 reporting requirements. The Commission proposes to amend § 32.3(b) such that a Non-SD/MSP will under no circumstances be subject to part 45 reporting requirements with respect to its trade option activities.
The Commission proposes to amend Commission regulation § 32.3(b) such that a Non-SD/MSP would not be required to report otherwise unreported trade options on Form TO. The Commission further proposes to delete Form TO from appendix A to part 32. These amendments are intended to reduce reporting burdens for Non-SD/MSP trade option counterparties, which, commenters have explained, may face significant costs in preparing Form TO.
The Commission preliminarily believes that there are surveillance benefits from Form TO data but recognizes that completing Form TO imposes costs and burdens on Non-SD/MSPs, especially small end users. Moreover, Non-SD/MSPs would, under the proposal, remain subject, via § 32.3(b), to the recordkeeping requirements in § 45.2, which require market participants to maintain full and complete records and to open their records to inspection upon the Commission's request.
The Commission proposes to amend § 32.3(b) by adding a requirement that Non-SD/MSP trade option counterparties must provide notice by email to DMO within 30 days after entering into trade options, whether reported or unreported, that have an aggregate notional value in excess of $1 billion in any calendar year (the “1 Billion Notice”).
For purposes of the proposed Notice Requirement, the aggregate notional value of trade options entered into, or expected to be entered into, should be calculated by multiplying (1) the maximum volume of the commodities that could be bought or sold pursuant to the trade options entered into by (2) the strike or exercise price per unit of the commodity. If the strike or exercise price is not a fixed number in the trade option agreement and, instead, is to be determined pursuant to a reference price source that is not determinable at the time the trade option is entered into,
In light of the other proposed amendments that would generally remove reporting requirements for Non-SD/MSP counterparties to trade options, the proposed Notice Requirement would provide the Commission insight into the size of the market for unreported trade options and the identities of the most significant market participants. Additionally, the proposed Notice Requirement would help guide the Commission's efforts to collect additional information through its authority to obtain copies of books or records required to be kept pursuant to the CEA and the Commission's regulations should market circumstances dictate.
Commission regulation § 32.3(b) provides that in connection with any commodity option transaction that is eligible for the trade option exemption, every counterparty shall comply with the swap data recordkeeping requirements of part 45, as otherwise applicable to any swap transaction.
Pursuant to Commission regulation § 45.2, records must be maintained by all trade option participants and made available to the Commission as specified therein.
Additional recordkeeping requirements in part 45, separate and apart from those specified in § 45.2 and which would apply to all trade option counterparties by operation of § 32.3(b) include:
• each swap must be identified in all recordkeeping by the use of a unique swap identifier (“USI”);
• each counterparty to any swap must be identified in all recordkeeping by means of a single LEI;
• each swap must be identified in all recordkeeping by means of a unique product identifier (“UPI”) and product classification system.
The Commission proposes to amend § 32.3(b) to clarify that trade option counterparties that are Non-SD/MSPs need not identify their trade options in all recordkeeping by means of either a USI or UPI, as required by §§ 45.5 and 45.7.
These amendments are intended to reduce recordkeeping burdens for Non-SD/MSP trade option counterparties, while allowing a trade option counterparty that is an SD/MSP to comply with applicable part 45 reporting obligations by properly identifying its Non-SD/MSP trade option counterparty by that counterparty's LEI in all recordkeeping as well as all swap data reporting, just as the SD/MSP would for any other swap.
Commission regulation § 32.3(c)(2) subjects trade options to part 151 position limits, to the same extent that part 151 would apply in connection with any other swap.
Therefore, since position limits do not currently apply to trade options, the Commission proposes to amend § 32.3(c) by deleting § 32.3(c)(2), including the reference to vacated part 151. This would not be a substantive change. Although commenters have requested assurance that position limits will not apply to trade options in the future,
As discussed above, the Commission is proposing amendments to the trade option exemption in § 32.3 that would: (1) Eliminate the part 45 reporting requirement for Non-SD/MSPs; (2) eliminate the Form TO filing requirement; (3) require those Non-SD/MSPs that have the most significant volume in trade options to provide DMO with either (i) the $1 Billion Notice or (ii) the Alternate Notice; and (4) clarify that Non-SD/MSPs are required to comply with the swap data recordkeeping requirements of § 45.2 only, as opposed to all part 45 recordkeeping requirements; (5) require Non-SD/MSPs that enter into exempt trade options with SD/MSPs to obtain an LEI pursuant to § 45.6 and provide it to their SD/MSP counterparties; (6) eliminate reference to the now-vacated part 151 position limits.
The Commission believes that the baseline for this cost and benefit consideration is existing § 32.3. Although No-Action Letter 13-08, as discussed above, currently offers no-action relief that is substantially similar to the relief that the proposed amendments would grant certain market participants and end users, as a no-action letter, it only represents the position of the issuing Division or Office and cannot bind the Commission or other Commission staff.
The Commission believes that the proposal would, overall, reduce the regulatory burdens and associated costs imposed by the conditions for relief in § 32.3(b). Although the Commission understands that some Non-SD/MSPs may experience costs associated with tracking the aggregate notional value of their trade option transactions for purposes of the $1 Billion Notice,
The Commission believes that the proposal would provide relief for Non-SD/MSPs entering into trade options by eliminating the part 45 and Form TO reporting obligations. The Commission believes that the proposed Notice Requirement would also support the regulatory goals of ensuring market integrity and protecting the public by allowing the Commission insight into the size of the market for unreported trade options and the ability to identify significant market participants, who the Commission may wish to contact if concerns about the market for trade options arise. The Commission invites comment regarding the nature and extent of these and any other benefits that could result from adoption of the proposal—including benefits to other market participants, the market itself or the general public—and, to the extent they can be quantified, monetary and other estimates thereof.
Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders.
The Commission recognizes that there may be trade-offs between reducing regulatory burdens and ensuring that the Commission has sufficient information to fulfill its regulatory mission. The proposed amendments to § 32.3 are intended to reduce some of the regulatory burdens on end users while still maintaining insight into the market for trade options to protect the public.
The Commission believes that the proposed amendments to § 32.3 could increase efficiency for participants in the market for trade options by reducing the reporting burdens on Non-SD/MSPs, allowing them to reallocate those resources to other more efficient purposes. The Commission also believes that the proposed Notice Requirement would promote market integrity by providing the Commission with information to use in its market oversight role, thereby fulfilling the purposes of the CEA.
The Commission preliminarily believes that the proposed amendments to § 32.3 would likely not have a significant impact on price discovery. Given that trade options are not subject to the real-time reporting requirements applicable to other swaps, meaning that current prices of consummated trade options are likely not available to many market participants, the Commission preliminarily believes any effect on price discovery would be negligible.
The Commission preliminarily believes that the proposed amendments would not have a meaningful effect on the risk management practices of the affected market participants and end users. Although the proposal is intended, in part, to reduce some of the regulatory burdens on certain market participants and end users, affected Non-SD/MSPs would still be required to maintain complete and accurate records in a manner that is readily available for production to regulators.
The Commission has not identified any other public interest considerations for this rulemaking.
The Commission invites comment on all aspects of its preliminary consideration of the costs and benefits associated with the proposal and the five factors the Commission is required to consider under CEA section 15(a). In addressing these areas and any other aspect of the Commissions preliminary cost-benefit considerations, the Commission encourages commenters to submit any data or other information they may have quantifying and/or qualifying the costs and benefits of the proposal.
The Regulatory Flexibility Act (the “RFA”)
As discussed above, the proposed amendments would affect the recordkeeping and reporting requirements for Non-SD/MSP counterparties relying on the trade option exemption in § 32.3. Pursuant to the eligibility requirements in § 32.3(a), such a Non-SD/MSP may be an ECP and/or a commercial party (
1. A description of the reasons why action by the agency is being considered.
The Commission is proposing to modify the trade option exemption in § 32.3 in response to comments from Non-SD/MSPs that the regulatory burdens currently imposed by § 32.3 are unnecessarily burdensome.
2. A succinct statement of the objectives of, and legal basis for, the proposal.
The objective of the proposal is to reduce the recordkeeping and reporting obligations for Non-SD/MSPs while still providing the Commission insight into the size of the market for unreported trade options and the identities of the most significant participants in the market. As stated above, the legal basis for the proposed rule is the Commission's plenary options authority in CEA section 4c(b).
3. A description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply.
The small entities to which the proposed amendments may apply are those commercial parties that would not qualify as ECPs and/or that fall within the definition of a “small entity” under the RFA, including size standards established by the Small Business Administration.
4. A description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.
The proposed amendments would relieve Non-SD/MSPs, which may include small entities, from certain recordkeeping and reporting requirements that would otherwise apply to them. While the proposal would impose a new requirement on certain Non-SD/MSPs to provide DMO by email with either the $1 Billion Notice or the Alternative Notice
Filing the $1 Billion Notice would require affected Non-SD/MSPs to track and aggregate the notional values of their trade options. The Commission expects that this general information should be readily compiled and aggregated using a spreadsheet or other existing software and would not require any professional skills beyond those typically held by any commercial party. Furthermore, Non-SD/MSPs that reasonably expect to enter into trade options with an aggregate notional value in excess of $1 billion during the calendar year may, in line with the Alternative Notice, simply send an email to DMO to that effect, thereby avoiding having to track the notional values of their trade options.
5. An identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap or conflict with the rule.
The Commission is unaware of any Federal rules that could duplicate, overlap, or conflict with the proposal.
6. A description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities. These may include, for example, (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.
A potential alternative to relieving Non-SD/MSPs, which may include small entities, from certain recordkeeping and reporting requirements would be to either (1) not amend the current rule, which would maintain recordkeeping and reporting requirements that Non-SD/MSPs have represented are onerous, or (2) create a rule with more specific reporting parameters for specific entities. While the proposal would impose the new annual Notice Requirement on certain Non-SD/MSPs, overall, the Commission believes that the proposed amendments would have a positive economic impact on Non-SD/MSPs that are small entities because they would generally relax reporting requirements across all trade option counterparties that are Non-SD/MSPs. Although the proposal could expressly limit application of the Notice Requirement to entities that do not meet the RFA definition of a small entity, the Commission does not believe that is necessary because, as stated above, the Commission does not expect many small entities to be affected by that requirement, if any at all. Furthermore, even if a small entity were to enter into trade options with an aggregate notional value in excess of $1 billion during a calendar year, the Commission believes that such information would nevertheless be important to the Commission's insight into the market for otherwise unreported trade options and may cause the Commission to adjust the threshold for notice reporting above $1 billion.
The purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
With the exception of the proposed Notice Requirement, the Commission believes that these proposed rules will not impose any new information collection requirements that require approval of OMB under the PRA. As a general matter, the proposed rules would relax reporting and recordkeeping requirements for Non-SD/MSPs entering into trade options with each other in connection with their respective businesses, including the withdrawal and removal of Form TO. As such, the proposed rules will not result in the creation of any new information collection subject to OMB review or approval under the PRA, except for the annual Notice Requirement. Therefore, these proposed rules do not, by themselves, impose any new information collection requirements other than those that already exist in connection with trade options pursuant to part 32 of the Commission's regulations, except for the proposed Notice Requirement.
As noted above, the Commission proposes to add the Notice Requirement for trade option counterparties that are Non-SD/MSPs, which requirement is considered to be a collection of information within the meaning of the PRA. Accordingly, the Commission is amending OMB control number 3038-0106 and submitting to OMB an information collection request for review and approval. If approved, this new collection of information will be mandatory.
The Commission anticipates that affected Non-SD/MSPs may incur certain costs in complying with the proposed $1 Billion Notice, including those related to calculating the aggregate notional value of trade options entered into, and to drafting the notice email and submitting it to DMO. There are no additional capital costs associated with this collection because all respondents are already required to create and store detailed records of their trade option transactions pursuant to § 32.3(b). The
The Commission notes that the proposed amendments would relieve trade option counterparties that are Non-SD/MSPs from certain recordkeeping and reporting requirements under part 45. The Commission believes that these proposed amendments would not cause a material net reduction in the current part 45 PRA burden estimates (OMB control number 3038-0096) to the extent that such reduced recordkeeping and reporting burdens for trade option counterparties that are Non-SD/MSPs would be insubstantial when compared to the overall part 45 PRA burden estimate as it relates to Non-SD/MSPs.
The Commission specifically invites public comment on the accuracy of its estimate that no additional information collection requirements or changes to existing collection requirements, other than the proposed Notice Requirement, would result from the proposal.
Commodity futures, consumer protection, fraud, reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Commodity Futures Trading Commission proposes to amend 17 CFR part 32 as set forth below:
7 U.S.C. 1a, 2, 6c, and 12a, unless otherwise noted.
(a) Subject to paragraphs (b), (c), and (d) of this section, the provisions of the Act, including any Commission rule, regulation, or order thereunder, otherwise applicable to any other swap shall not apply to, and any person or group of persons may offer to enter into, enter into, confirm the execution of, maintain a position in, or otherwise conduct activity related to, any transaction in interstate commerce that is a commodity option transaction, provided that:
(1) Such commodity option transaction must be offered by a person that has a reasonable basis to believe that the transaction is offered to an offeree as described in paragraph (a)(2) of this section. In addition, the offeror must be either:
(i) An eligible contract participant, as defined in section 1a(18) of the Act, as further jointly defined or interpreted by the Commission and the Securities and Exchange Commission or expanded by the Commission pursuant to section 1a(18)(C) of the Act; or
(ii) A producer, processor, or commercial user of, or a merchant handling the commodity that is the subject of the commodity option transaction, or the products or by-products thereof, and such offeror is offering or entering into the commodity option transaction solely for purposes related to its business as such;
(2) The offeree must be a producer, processor, or commercial user of, or a merchant handling the commodity that is the subject of the commodity option transaction, or the products or by-products thereof, and such offeree is offered or entering into the commodity option transaction solely for purposes related to its business as such; and
(3) The commodity option must be intended to be physically settled, so that, if exercised, the option would result in the sale of an exempt or agricultural commodity for immediate or deferred shipment or delivery.
(b) In connection with any commodity option transaction entered into pursuant to paragraph (a) of this section, every counterparty that is not a swap dealer or major swap participant shall:
(1) Comply with the swap data recordkeeping requirements of § 45.2 of this chapter, as otherwise applicable to any swap transaction;
(2) Obtain a legal entity identifier pursuant to § 45.6 of this chapter if the counterparty to the transaction involved is a swap dealer or major swap participant, and provide such legal entity identifier to the swap dealer or major swap participant counterparty; and
(3) Notify the Division of Market Oversight through an email to
(i) No later than 30 days after entering into trade options, whether reported or unreported, having an aggregate notional value in excess of $1 billion during any calendar year, or
(ii) Provide notice that the Non-SD/MSP reasonably expects to enter into trade options, whether reported or unreported, having an aggregate notional value in excess of $1 billion during any calendar year.
(c) In connection with any commodity option transaction entered into pursuant to paragraph (a) of this section, the following provisions shall apply to every trade option counterparty to the same extent that such provisions would apply to such person in connection with any other swap:
(1) Part 20 of this chapter (Swaps Large Trader Reporting);
(2) Subpart J of part 23 of this chapter (Duties of Swap Dealers and Major Swap Participants);
(3) Sections 23.200, 23.201, 23.203, and 23.204 of this chapter (Reporting and Recordkeeping Requirements for Swap Dealers and Major Swap Participants); and
(4) Section 4s(e) of the Act (Capital and Margin Requirements for Swap Dealers and Major Swap Participants).
(d) In addition, any person or group of persons offering to enter into, entering into, confirming the execution of, maintaining a position in, or otherwise conducting activity related to a commodity option transaction in interstate commerce pursuant to paragraph (a) of this section shall remain subject to part 180 of this chapter (Prohibition Against Manipulation) and § 23.410 of this chapter (Prohibition on Fraud, Manipulation, and other Abusive Practices) and the antifraud, anti-manipulation, and enforcement provisions of sections 2, 4b, 4c, 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6, 6c, 6d, 9, and 13 of the Act.
(e) The Commission may, by order, upon written request or upon its own motion, exempt any person, either unconditionally or on a temporary or other conditional basis, from any provisions of this part, and the provisions of the Act, including any Commission rule, regulation, or order thereunder, otherwise applicable to any other swap, other than § 32.4 of this chapter, part 180 of this chapter (Prohibition Against Manipulation), and § 23.410 of this chapter (Prohibition on Fraud, Manipulation, and other Abusive Practices), and the antifraud, anti-manipulation, and enforcement provisions of sections 2, 4b, 4c, 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6, 6c, 6d, 9, and 13 of the Act, if it finds, in its discretion, that it would not be contrary to the public interest to grant such exemption.
The following appendices will not appear in the Code of Federal Regulations.
On this matter, Chairman Massad and Commissioners Wetjen, Bowen, and Giancarlo voted in the affirmative. No Commissioner voted in the negative.
I am pleased to support the staff's recommendation to issue a proposed rulemaking to revise the rules regarding trade options, which are a subset of commodity options. Specifically, the Commission is proposing to reduce reporting and recordkeeping requirements for end-users that transact in trade options in connection with their businesses, including by eliminating the requirement to file form TO. These products are commonly used by commercial participants, so this action should help those participants continue to do so cost-effectively.
We will continue to look at ways that we can make sure commercial end-users can use these markets effectively and to make sure that the new regulatory framework for swaps does not impose unintended consequences or burdens for them. An important part of this effort has been, and shall continue to be, fine-tuning our rules so that commercial companies can continue to conduct their daily operations efficiently.
This proposed rulemaking would relax reporting and recordkeeping requirements where two commercial parties enter into trade options with each other in connection with their respective businesses. These proposed amendments are generally intended to reduce burdens for end-users, many of whom, as commenters explained, face logistical impediments and significant costs in connection with reporting their trade options.
This proposed rulemaking reduces and clarifies requirements for end-users that use trade options in connection with their businesses, and the proposed amendments would allow the Commission to maintain regulatory insight into the market for otherwise unreported trade options. End-users would remain subject to the recordkeeping requirements in § 45.2, which require market participants to maintain full and complete records and to open their records to inspection upon the Commission's request. Additionally, the proposed $1 billion notice requirement would provide the Commission insight into the size of the market for unreported trade options and the identities of the most significant market participants.
I look forward to receiving public comment on this proposed rulemaking.
Today, we are approving a proposed rule that would implement changes to the Commission's Trade Option exemption to reduce the burden on commercial entities seeking to hedge risks associated with their physical businesses. I support these changes. However, based upon comments the Commission has received and meetings that I have had with members of the public, I believe the Commission should consider additional clarifications to better ensure legal certainty for the manufacturing, energy and agricultural industries' ability to address their commercial risks.
In the manufacturing, agriculture and energy sectors, a wide variety of physically-delivered instruments are used to secure companies' commercial needs for a physical commodity. These instruments, although they call for physical delivery, often contain some element of optionality that can lead to questions about their appropriate regulatory treatment. These contracts, particularly in the energy sector, are all commonly referred to as physical contracts, and they, according to what I have been told, often receive similar treatment from both a business operations and an accounting standpoint within the entities that use them.
Further, these physical contracts are often handled and accounted for separately from other derivatives, such as futures contracts or cash-settled swaps, according to market participants. Treating some portion of these physical contracts as swaps simply because they may contain some characteristics of commodity options can lead to significant costs and difficulties. For instance, companies may have to reconfigure their business systems to parse transactions where there was, before Dodd Frank, no need to undertake such a reconfiguration.
Many commenters and people I have met have expressed particular concerns regarding how instruments having elements of both forward contracts and some volumetric optionality should be regulated. In a separate release, the Commission plans to finalize guidance on how forward contracts with embedded volumetric optionality relate to the forward contract exclusion from the swap definition. While that release will help address the circumstances under which volumetric optionality embedded in a forward contract do not cause the forward contract to be a “swap”, my understanding is that additional relief may still be helpful to commercial market participants seeking to hedge their physical needs with instruments that contain a forward contract with volumetric optionality.
Market participants have also expressed concerns about the appropriate treatment of “peaking supply contracts” which are often used by companies to manage the risks attendant to their need for physical commodities that may be used to generate electricity, run an operating plant, or manufacture or supply other goods and services.
For both types of instruments, I think, the Commission could benefit from getting comments on potential avenues for addressing concerns that have been raised about their appropriate treatment.
As noted in the proposal, the trade option exemption is intended to permit parties to hedge or otherwise enter into commodity option transactions for commercial purposes without being subject to the general Dodd-Frank swaps regime. The exemption continues the long Commission policy of exempting them from requirements of the Commodity Exchange Act that would otherwise apply to commodity options. It provides an exemption for contracts meeting the requirements of the trade option exemption from regulation as swaps to the extent they would otherwise be subject to regulation by virtue of being a “commodity option”.
Both forward contracts and trade options play an important role in managing the physical commodity risks attendant to commercial operations. According to industry participants, there can be difficulty in separating out, for regulatory purposes, the “option” component of an instrument containing both a forward contract and an element that might be considered a commodity option. My understanding is that these overall instruments are typically used to address a commercial entity's physical requirements for a particular commodity as part of its ongoing commercial operation and that the commodity option component is often used to manage uncertainty in the commercial supply and demand factors that affect a commercial entities' need for a particular physical commodity. Additionally, these instruments are often highly customized and the various components not always easy to separate and classify, according to industry participants.
Given these concerns, I think it would be helpful to get comment upon whether the Commission should consider a new § 32.3(f) as part of the trade option exemption being proposed today. Such an exemption would exempt qualifying trade options from the swap reporting and recordkeeping requirements that would otherwise apply to them as trade options so long as they: (1) Are not severable nor separately marketable from the forward contract component of overall instrument, (2) are related to and entered into concurrently with the forward contract component of overall instrument, and (3) for which the physical commodity underlying the trade option component is the same as that underlying the forward contract component of the overall instrument.
The text of such additional exemption would read as follows:
“
(1) The volumetric variability is not severable nor separately marketable from the forward contract component,
(2) the volumetric variability is related to and entered into concurrently with the forward contract component, and
(3) the physical commodity underlying the volumetric variability is the same as that underlying the forward contract component.”
As noted above, concerns have also been raised about the appropriate treatment of peaking supply contracts which are often used by companies to manage the risks attendant to their need for physical commodities that may be used to generate electricity, run an operating plant, or manufacture or supply other goods and services.
Market participants have raised concerns about whether or not these contracts could be considered commodity options. In instances where these contracts represent a reservation of a portion of supplier's capacity to provide a particular commodity and not a transaction for the commodity itself, it seems possible these contracts may not be commodity options. One test that has been proposed to determine whether or not such contracts are commodity options is whether:
1. The subject of the agreement, contract or transaction is a binding, sole-source, obligation of a supplier of a physical commodity to stand ready to meet a specified portion of a commercial consumer's physical need for a commodity through providing for the physical delivery of that commodity to the specified commercial consumer or its designee in connection with the physical obligation,
2. The payment provided by the commercial consumer to the commercial supplier for such agreement, contract or transaction is in the nature of a reservation charge to provide the service of standing ready to meet the physical needs of the commercial consumer,
3. Payment for any commodity delivered under such agreement, contract or transaction is at the market price for that commodity at the time of delivery (
4. The agreement, contract or transaction is necessary to meet the commercial consumer's projected physical needs or is required by regulation.
I think the Commission would benefit from receiving comments on this proposed test and peaking supply contracts more generally as it appears to be one of the significant outstanding issues regarding instruments that may or may not be trade options.
Together, these two additional items may help address outstanding concerns that have been expressed by commercial market participants, and I think the Commission would benefit by getting comment upon them.
I support the Commission's proposed amendments to the interim final trade options rule. These are common sense reforms that will alleviate certain recordkeeping and reporting burdens that § 32.3 currently imposes on end-users that use trade options to manage commercial risk. The deletion of the reference in § 32.3(c)(2) to part 151 position limits is also appropriate in light of the fact that part 151 was vacated by the court in
I strongly disagree, however, with the Commission's statement that it preliminarily believes that any future application of position limits would be best addressed in the context of the pending position limits rulemaking. Simply put, position limits for trade options are not “necessary to diminish, eliminate, or prevent” excessive speculation. Section 4a(a)(1) of the Commodity Exchange Act (CEA). The final trade options rule should make clear that trade options are exempt from position limits.
As the Commission recognized in promulgating the interim final rule establishing the trade options exemption, “position limits apply only to speculative positions. . . . Trade options, which are commonly used as hedging instruments or in connection with some commercial function, would normally qualify as hedges, exempt from the speculative position limit rules.”
By definition, the offeree to a trade option “must be a producer, commercial user of, or a merchant handling the commodity that is the subject of the commodity option transaction, or the products or by-products thereof,” and must restrict the use of trade options “solely for purposes related to its business as such.” § 32.3(a)(2). Moreover, the “option must be intended to be physically settled, so that, if exercised, [it] would result in the sale of an exempt or agricultural commodity for immediate or deferred shipment or delivery.” § 32.3(a)(3). Given these parameters, the risk that trade options could be used to engage in speculation, much less excessive speculation, is so remote as to be virtually non-existent.
Applying a position limits regime to trade options and requiring commercial end-users to seek bona fide hedge treatment for those transactions, which was floated as a possibility in the pending proposed position limits rule, would not be an acceptable outcome.
The Commission has the authority in section 4a(a)(7) of the CEA to exempt “any person or class of persons, any swap or class of swaps, any contract of sale of a commodity for future delivery or class of such contracts, any option or class of options, or any transaction or class of transactions from any requirement it may establish . . . with respect to position limits.”
As long as the specter of position limits hangs over trade options, market participants that have used these instruments for decades as a cost effective means of ensuring a reliable supply of a physical commodity and to hedge commercial risk will be reluctant to use them. As I have said before, commercial end-users, including commercial end-users of everyday trade options, were not the cause of the financial crisis and the federal government should stop treating them like they were.
I urge my fellow Commissioners to eliminate this regulatory uncertainty sooner, rather than later, by exercising our section 4a(a)(7) authority in connection with this trade options rulemaking. I encourage further public comment on the issue.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to amend the federal Prevention of Significant Deterioration (PSD) program regulations to allow for rescission of certain PSD permits issued by the EPA and delegated reviewing authorities under Step 2 of the Prevention of Significant Deterioration and Title V Greenhouse Gas (GHG) Tailoring Rule (Tailoring Rule). We are proposing to take this action in order to provide a mechanism for the EPA and delegated reviewing authorities to rescind PSD permits that are no longer required in light of the United States (U.S.) Supreme Court's decision in
Written comments must be received by June 8, 2015.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2015-0071, by mail to U.S. Environmental Protection Agency, EPA Docket Center, Mail Code 28221T, 1200 Pennsylvania Avenue NW., Washington, DC 20460. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the
Mrs. Jessica Montañez, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Air Quality Planning Division, (C504-03), Research Triangle Park, NC 27711, telephone number (919) 541-3407, email at
If there is a public hearing, it will be held at the EPA, Building C, 109 T.W. Alexander Drive, Research Triangle Park, North Carolina, 27709; the room number will be announced on the NSR Web site at
If you want to request a hearing and present oral testimony at the hearing, you should notify, on or before May 18, 2015, Ms. Pamela Long, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Air Quality Policy Division, C504-01, Research Triangle Park, NC 27711, telephone (919) 541-0641, email
The EPA is proposing to take action to amend the federal PSD program regulation at 40 CFR 52.21 to allow existing PSD permits that were issued under Step 2 of the Tailoring Rule
The U.S. Supreme Court determined the permitting requirements under Step 2 of the Tailoring Rule to be invalid in
This proposed action does not itself rescind any permits; it only proposes the regulatory mechanism through which the EPA could then rescind, upon request of a source, an EPA-issued Step 2 PSD permit consistent with the U.S. Supreme Court decision and the amended judgment of the D.C. Circuit. Furthermore, we have published a direct final rule amending these federal PSD program regulations in the “Rules and Regulations” section of this
If we receive no adverse comment, we will not take further action on this proposed rule. If the EPA receives adverse comment in response to the direct final rule, we will publish a timely withdrawal in the
We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, please see the information provided in the
The regulatory text for the proposal is identical to that for the direct final rule published in the “Rules and Regulations” section of this
Neither this rule or direct final rule address any issues concerning the federal PSD permit rescission regulations at 40 CFR 52.21(w) that are not related to the Supreme Court decision in
The entities potentially affected by this rule include new and modified stationary sources that were required to obtain an EPA-issued Step 2 PSD permit under the federal PSD regulations found at 40 CFR 52.21 solely because the source or a modification of the source was expected to emit or increase GHG emissions over the applicable thresholds. This includes (1) sources classified as major for PSD purposes solely on the basis of their potential GHG emissions; and (2) sources emitting major amounts of other pollutants that experienced a modification resulting in an increase of only greenhouse gas emission above the applicable levels in the EPA regulations. Entities affected by this rule may also include state or local reviewing authorities that have been delegated federal authority to implement the federal PSD regulations under 40 CFR 52.21(u) and that have issued Step 2 PSD permits to sources within their jurisdiction. This rule does not address the requirements for approval of a PSD program into a state implementation plan (40 CFR 51.166) or the rescission of PSD permits issued by states and local programs with such approved programs. Stationary sources with questions on the PSD permitting obligations arising from Step 2 PSD permits issued by state or local reviewing authorities under the permitting programs approved into state implementation plans should review the governing statutory provisions and provisions in the applicable approved state or local permitting program to determine how to address any Step 2 PSD permitting issues and consult with the EPA as necessary.
Environmental protection, Air pollution control, Carbon monoxide, Greenhouse gases, Incorporation by reference, Intergovernmental relations, Lead, National ambient air quality standards, New source review, Nitrogen dioxide, Ozone, Particulate matter, Permit rescissions, Preconstruction permitting, Sulfur oxides, Tailoring rule, Volatile organic compounds.
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a request from the state of Alabama for the EPA to relax the Reid Vapor Pressure (RVP) standard applicable to gasoline introduced into commerce from June 1 to September 15 of each year for Jefferson and Shelby counties (“the Birmingham area”). Specifically, the EPA is proposing to amend the regulations to change the RVP standard for the Birmingham area from 7.8 pounds per square inch (psi) to 9.0 psi for gasoline. The EPA has preliminarily determined that this change to the federal RVP regulation is consistent with the applicable provisions of the Clean Air Act (CAA).
Written comments must be received on or before June 8, 2015 unless a public hearing is requested by May 22, 2015. If the EPA receives such a request, we will publish information related to the timing and location of the hearing and a new deadline for public comment.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2014-0905, by one of the following methods:
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Patty Klavon, Office of Transportation and Air Quality, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, Michigan 48105; telephone number: (734) 214-4476; fax number: (734) 214-4052; email address:
The contents of this preamble are listed in the following outline:
In the “Rules and Regulations” section of this
The regulatory text for this proposed rule is included in the direct final rule, and parties should review that rule for the regulatory text. If the EPA receives no adverse comment, the EPA will not take further action on this proposed rule. If the EPA receives adverse comment on this rule or any portion of this rule, the EPA will withdraw the direct final rule or the portion of the rule that received adverse comment. All public comments received will then be addressed in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period on this rulemaking. Any parties interested in commenting must do so at this time.
Entities potentially affected by this rule are fuel producers and distributors who do business in Alabama.
The above table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. The table lists the types of entities of which the EPA is aware that potentially could be affected by this rule. Other types of entities not listed on the table could also be affected by this rule. To determine whether your organization could be affected by this rule, you should carefully examine the regulations in 40 CFR 80.27. If you have questions regarding the applicability of this action to a particular entity, call the person listed in the
Do not submit CBI to the EPA through
When submitting comments, remember to:
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
You may be required to pay a reasonable fee for copying docket materials.
The EPA will not hold a public hearing on this matter unless a request is received by the person identified in the
The EPA is proposing to approve a request from the state of Alabama to change the summertime RVP standard for Jefferson and Shelby counties (“the Birmingham area”) from 7.8 psi to 9.0 psi by amending the EPA's regulations at 40 CFR 80.27(a)(2). In a previous rulemaking, the EPA approved a state implementation plan (SIP) revision from
The preamble for this rulemaking is organized as follows: Section III.B. provides the history of the federal gasoline volatility regulation. Section III.C. describes the policy regarding relaxation of volatility standards in ozone nonattainment areas that are redesignated as attainment areas. Section III.D. provides information specific to Alabama's request for the Birmingham area. Finally, Section IV. briefly discusses the associated direct final rule.
On August 19, 1987 (52 FR 31274), the EPA determined that gasoline nationwide was becoming increasingly volatile, causing an increase in evaporative emissions from gasoline-powered vehicles and equipment. Evaporative emissions from gasoline, referred to as volatile organic compounds (VOC), are precursors to the formation of tropospheric ozone and contribute to the nation's ground-level ozone problem. Exposure to ground-level ozone can reduce lung function, thereby aggravating asthma and other respiratory conditions, increase susceptibility to respiratory infection, and may contribute to premature death in people with heart and lung disease.
The most common measure of fuel volatility that is useful in evaluating gasoline evaporative emissions is RVP. Under CAA section 211(c), the EPA promulgated regulations on March 22, 1989 (54 FR 11868) that set maximum limits for the RVP of gasoline sold during the regulatory control periods that were established on a state-by-state basis in the final rule. The regulatory control periods addressed the portion of the year when peak ozone concentrations were expected. These regulations constituted Phase I of a two-phase nationwide program, which was designed to reduce the volatility of gasoline during the high ozone season. On June 11, 1990 (55 FR 23658), the EPA promulgated more stringent volatility controls as Phase II of the volatility control program. These requirements established maximum RVP standards of 9.0 psi or 7.8 psi (depending on the state, the month, and the area's initial ozone attainment designation with respect to the 1-hour ozone NAAQS.)
The 1990 CAA Amendments established a new section 211(h) to address fuel volatility. CAA section 211(h) requires the EPA to promulgate regulations making it unlawful to sell, offer for sale, dispense, supply, offer for supply, transport, or introduce into commerce gasoline with an RVP level in excess of 9.0 psi during the high ozone season. CAA section 211(h) also prohibits the EPA from establishing a volatility standard more stringent than 9.0 psi in an attainment area, except that the EPA may impose a lower (more stringent) standard in any former ozone nonattainment area redesignated to attainment.
On December 12, 1991 (56 FR 64704), the EPA modified the Phase II volatility regulations to be consistent with CAA section 211(h). The modified regulations prohibited the sale of gasoline with an RVP above 9.0 psi in all areas designated attainment for ozone, effective January 13, 1992. For areas designated as nonattainment, the regulations retained the original Phase II standards published on June 11, 1990 (55 FR 23658), which included the 7.8 psi ozone season limitation for certain areas. As stated in the preamble to the Phase II volatility controls and reiterated in the proposed change to the volatility standards published in 1991, the EPA will rely on states to initiate changes to their respective volatility programs. The EPA's policy for approving such changes is described below in Section III.C.
The state of Alabama has initiated this change by requesting that the EPA relax the 7.8 psi RVP standard to 9.0 psi for the Birmingham area, which is subject to the 7.8 RVP requirement during the summertime ozone season. Accordingly, the state of Alabama provided a technical demonstration showing that relaxing the federal RVP requirements in the Birmingham area from 7.8 psi to 9.0 psi would not interfere with maintenance of the NAAQS or with any other applicable CAA requirement.
As stated in the preamble for the EPA's amended Phase II volatility standards (56 FR 64706), any change in the volatility standard for a nonattainment area that was subsequently redesignated as an attainment area must be accomplished through a separate rulemaking that revises the applicable standard for that area. Thus, for former 1-hour ozone nonattainment areas where the EPA mandated a Phase II volatility standard of 7.8 psi RVP in the December 12, 1991 rulemaking, the federal 7.8 psi RVP requirement remains in effect, even after such an area is redesignated to attainment, until a separate rulemaking is completed that relaxes the federal RVP standard in that area from 7.8 psi to 9.0 psi.
As explained in the December 12, 1991 rulemaking, the EPA believes that relaxation of an applicable RVP standard is best accomplished in conjunction with the redesignation process. In order for an ozone nonattainment area to be redesignated as an attainment area, CAA section 107(d)(3) requires the state to make a showing, pursuant to CAA section 175A, that the area is capable of maintaining attainment for the ozone NAAQS for ten years. Depending on the area's circumstances, this maintenance plan will either demonstrate that the area is capable of maintaining attainment for ten years without the more stringent volatility standard or that the more stringent volatility standard may be necessary for the area to maintain its attainment with the ozone NAAQS. Therefore, in the context of a request for redesignation, the EPA will not relax the volatility standard unless the state requests a relaxation and the maintenance plan demonstrates to the satisfaction of the EPA that the area will maintain attainment for ten years without the need for the more stringent volatility standard.
Alabama did not request relaxation of the federal RVP standard from 7.8 psi to 9.0 psi when the Birmingham area was redesignated to attainment for either the 1-hour ozone NAAQS or the 1997 ozone NAAQS. However, Alabama took a conservative approach in developing maintenance plans associated with those redesignation requests by estimating emissions using a federal RVP requirement of 9.0 psi.
In a May 12, 2006 final rule, the EPA approved the Birmingham area's redesignation request and maintenance plan for the 1997 ozone NAAQS. See 71 FR 27631 (May 12, 2006).
On March 2, 2012, the state of Alabama, through the Alabama Department of Environmental Management (ADEM), submitted a proposed revision to Alabama's SIP removing the state-level RVP requirement to use 7.0 psi RVP gasoline in the Birmingham area during the summertime ozone season. The EPA approved the revision in an April 20, 2012 final rule. See 77 FR 23619. The revision to the Alabama SIP resulted in the federal RVP requirement of 7.8 psi applying to the Birmingham area.
On November 14, 2014, the state of Alabama submitted a proposed revision to its SIP demonstrating that removal of the federal RVP requirement of 7.8 psi for gasoline during the summertime ozone season in the Birmingham area would not interfere with maintenance of any NAAQS. Specifically, the state provided a technical demonstration showing that relaxing the federal RVP requirement in the Birmingham area from 7.8 psi to 9.0 psi would not interfere with maintenance of the NAAQS or with any other applicable requirement of the CAA.
The EPA evaluated and approved Alabama's November 14, 2014 SIP revision in a previous rulemaking that was subject to public notice-and-comment. The EPA received two comments on that rulemaking, and those comments were addressed in the final rule for that rulemaking. See 80 FR 21170 (April 17, 2015). The comments received can be found in the docket for that rulemaking (EPA-R04-OAR-2014-0867).
In this action, the EPA is proposing to approve Alabama's request to relax the summertime ozone season RVP standard for the Birmingham area from 7.8 psi to 9.0 psi. Specifically, the EPA is proposing to amend the applicable RVP standard from 7.8 psi to 9.0 psi provided at 40 CFR 80.27(a)(2) for the Birmingham area. This is based on the previous approval of Alabama's November 14, 2014 SIP revision, and the fact that the Birmingham area is currently in attainment for all ozone NAAQS.
A direct final rule that would make the same changes as those proposed in this action appears in the Rules and Regulations section of this
If the EPA receives adverse comments on the rule or any portion of the rule, the EPA will withdraw the direct final rule or the portion of the rule that received adverse comment. The EPA will publish a timely withdrawal in the
The changes to the regulatory text proposed in this document are identical to those for the direct final rule published in the Rules and Regulations section of this
For a complete discussion of all the administrative requirements applicable to this action, see the direct final rule in the Rules and Regulations section of this
The statutory authority for this action is granted to the EPA by Sections 211(h) and 301(a) of the Clean Air Act, as amended; 42 U.S.C. 7545(h) and 7601(a).
Environmental protection, Administrative practice and procedures, Air pollution control, Fuel additives, Gasoline, Incorporation by reference, Motor vehicle and motor vehicle engines, Motor vehicle pollution, Penalties, Reporting and recordkeeping requirements.
The Department of Agriculture will submit the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, Washington, DC; New Executive Office Building, 725—17th Street NW., Washington, DC, 20503. Commenters are encouraged to submit their comments to OMB via email to:
Comments regarding these information collections are best assured of having their full effect if received by June 8, 2015. Copies of the submission(s) may be obtained by calling (202) 720-8681.
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Rural Utilities Service, USDA.
Notice of intent to hold a public workshop and prepare an Environmental Assessment.
The Rural Utilities Service (RUS) intends to hold a public scoping workshop and prepare an Environmental Assessment (EA) in connection with possible impacts related to the construction and operation of a new gas-fired combustion turbine generation facility. The project, Hill County Generation Facility, is proposed by Brazos Electric Power Cooperative, Inc. (Brazos), of Waco, Texas. RUS may provide financial assistance for the project. The public scoping workshop is scheduled for Thursday, May 21, 2015, from 4:00 p.m. until 7:00 p.m. in the Community Hall of the First Presbyterian Church at 106 N. Lamar, Itasca, TX 76055.
Dennis E. Rankin, Environmental Protection Specialist, RUS, Engineering and Environmental Staff, Stop 1571, 1400 Independence Avenue SW., Washington, DC 20250-1571, Telephone: (202) 720-1953 or email:
Brazos is proposing to construct a new gas-fired combustion turbine generation facility and is evaluating a potential site located in Hill County, Texas. The 40 acre site is located in the northeast corner of Hill County approximately 8 miles east of Itasca, Texas on FM 66 just west of the Hill County line. Associated facilities include a 4.5 mile gas pipeline and new switching facilities to connect the generation plant to existing transmission lines crossing the site.
Comments regarding the proposed project may be submitted in writing at the public scoping workshop or in writing no later than June 21, 2015, to RUS at the address provided above.
An Environmental Assessment (EA) will be prepared for the proposed project. Based on a review of the EA and other relevant information, RUS will determine if the preparation of an Environmental Impact Statement is necessary. Should RUS determine that the preparation of an Environmental Impact Statement is not necessary, it
Any final action by RUS related to the proposed project will be subject to, and contingent upon, compliance with all relevant Federal, State, and local environmental laws and regulations and completion of the environmental review procedures as prescribed by RUS' Environmental Policies and Procedures.
Office of Inspector General (OIG), Department of Commerce (DOC).
Notice of Proposed Amendment to Privacy Act System of Records, “OIG Investigative Records—COMMERCE/DEPT-12.”
In accordance with the Privacy Act of 1974, as amended, 5 U.S.C. 552a(e)(4) and (11), and Office of Management and Budget (OMB) Circular A-130, Appendix I, “Federal Agency Responsibility for Maintaining Records about Individuals,” DOC OIG proposes to amend the system of records entitled “OIG Investigative Records—COMMERCE/DEPT-12,” to reflect a new investigative case management system and an electronic discovery tool; update OIG routine uses; update OIG's practices for storing, retrieving, and safeguarding records in the system; and generally update the system's notice. OIG's changes will generally improve the organization, security, ability to search, and reporting capability of OIG's investigative records. Accordingly, “OIG Investigative Records—COMMERCE/DEPT-12,” is proposed to be amended as shown below. DOC OIG invites public comment on the amended system announced in this publication.
Please address comments to the OIG Office of Counsel, Room 7896, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; by email to
The Inspector General Act of 1978, as amended, 5 U.S.C. App. 3, authorizes DOC OIG to conduct investigations to detect and prevent fraud, waste, mismanagement and abuse, and to promote economy and efficiency, in the DOC's programs and operations. OIG uses records in this system in the course of investigating individuals and entities suspected of criminal, civil, or administrative misconduct, and in supporting related judicial and administrative proceedings. OIG's Office of Investigations (OI) maintains and manages OIG's investigative records. DOC OIG proposes to amend the system of records entitled “OIG Investigative Records—COMMERCE/DEPT-12,” published in the
The updates to the system will not involve the collection of additional categories of information, but will provide methods for data tracking, organization, and retrieval previously unavailable. OIG's changes will generally improve the organization, security, ability to search, and reporting capability of investigative records. For the public's convenience, DOC OIG restates below in its entirety the system of records, including the proposed amendments.
Sensitive but Unclassified (SBU).
U.S. Department of Commerce, Office of Inspector General, 1401 Constitution Avenue NW., Washington, DC 20230; U.S. Department of Commerce, Office of Inspector General, Regional Offices, and investigative site(s) used in the course of OIG investigation(s).
In connection with its investigative duties, DOC OIG maintains records in its records system on the following categories of individuals insofar as they are relevant to any investigation or preliminary inquiry undertaken to determine whether to commence an investigation: Subjects of investigations; complainants; witnesses; confidential and non-confidential informants; contractors; subcontractors; recipients of Federal funds and their contractors/subcontractors and employees; individuals interacting with DOC employees or management; current, former, and prospective DOC employees; alleged violators of DOC rules and regulations; union officials; individuals who are investigated and/or interviewed; persons suspected of violations of administrative, civil, and/or criminal provisions; grantees; sub-grantees; lessees; licensees; persons engaged in official business with the DOC; or other persons identified by the OIG or by other agencies, constituent units of the DOC, and members of the general public in connection with the authorized functions of the OIG.
The system contains investigative reports and materials gathered or created with regard to investigations of administrative, civil, and criminal matters by DOC OIG and other Federal, State, local, tribal, territorial, non-governmental, international, foreign regulatory, or foreign law enforcement agencies or entities. Categories of records may include: Complaints; requests to investigate; information contained in criminal, civil, or administrative referrals; statements from subjects and/or witnesses; affidavits, transcripts, police reports, photographs, and/or documents relative to a subject's prior criminal record; medical records; accident reports; materials and intelligence information from other governmental investigatory or law enforcement organizations; information relative to the status of a particular complaint or investigation, including any determination relative to criminal prosecution, civil, or administrative action; general case management documentation; subpoenas and evidence obtained in response to subpoenas; evidence logs; pen registers; correspondence; personal information, including financial and biometric data; forensic computer images; records of investigation; and other data and
The Inspector General Act of 1978, 5 U.S.C. App. 3, as amended.
The records contained in this system are used by DOC OIG to carry out its statutory responsibilities under the Inspector General Act of 1978, 5 U.S.C. App. 3, as amended, to conduct and supervise investigations, prevent and detect fraud, waste, and abuse, and promote economy, efficiency, and effectiveness in DOC programs and operations. The records are used in the course of investigating individuals and entities suspected of criminal, civil, or administrative misconduct and in supporting related judicial and administrative proceedings.
1. A record from this system of records may be disclosed, as a routine use, to a Federal, state or local agency maintaining civil, criminal or other relevant enforcement information or other pertinent information, such as current license, if necessary to obtain information relevant to a DOC decision concerning the assignment, hiring, or retention of an individual, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant or other benefit.
2. A record from this system of records may be disclosed, as a routine use, in the course of presenting evidence to a court, magistrate, or administrative tribunal, including disclosures to opposing counsel in the course of discovery or settlement negotiations.
3. A record in this system of records may be disclosed, as a routine use, to a Member of Congress submitting a request involving an individual when the individual has requested assistance from the Member with respect to the subject matter of the record.
4. A record in this system of records may be disclosed, as a routine use, to the Office of Management and Budget in connection with the review of private relief legislation as set forth in OMB Circular A-19 at any stage of the legislative coordination and clearance process as set forth in that Circular.
5. A record in this system of records may be disclosed, as a routine use, to the Department of Justice in connection with determining whether disclosure thereof is required by the Freedom of Information Act (5 U.S.C. 552).
6. A record in this system may be transferred, as a routine use, to the Office of Personnel Management for personnel research purposes; as a data source for management information; for the production of summary descriptive statistics and analytical studies in support of the function for which the records are collected and maintained; or for related manpower studies.
7. A record from this system of records may be disclosed, as a routine use, to the General Services Administration (GSA) during an inspection of records conducted by GSA as part of that agency's responsibility to recommend improvements in records management practices and programs under authority of 44 U.S.C. 2904 and 2906. Such disclosure shall be made in accordance with the GSA regulations governing inspection of records for this purpose and any other relevant (
8. A record from this system of records may be disclosed, as a routine use, to the appropriate agency or entity, whether Federal, State, local, tribal, territorial, foreign, or international, charged with the responsibility for investigating or prosecuting a violation of any law, rule, regulation or order. Routine use for law enforcement purposes also includes disclosure to individuals or to agencies, whether Federal, State, local, foreign, or international, when necessary to further the ends of an investigation.
9. A record from this system of records may be disclosed, as a routine use, to representatives of the Department of Justice (DOJ) or of any other agency that is responsible for representing DOC interests in connection with judicial, administrative or other proceedings. This includes circumstances in which (1) the DOC or OIG, or any component thereof; (2) any employee of the DOC or OIG in his or her official capacity; (3) any employee of the DOC or OIG in his or her individual capacity, where DOJ has agreed to represent or is considering a request to represent the employee; or (4) the United States or any of its components, is a party to pending or potential litigation or has an interest in such litigation; in which the DOC or OIG is likely to be affected by the litigation, or in which the DOC or OIG determines that the use of such records by the DOJ is relevant and necessary to the litigation; provided, however, that in each case, the DOC or OIG determines that disclosure of records to the DOJ or representative is a use of the information that is compatible with the purpose for which the records were collected. Records may also be disclosed to representatives of DOJ and other U.S. Government entities, to the extent necessary, to obtain their advice on any matter relevant to an OIG investigation.
10. A record from this system of records may be disclosed, as a routine use, to any source from which additional information is requested in order to obtain information relevant to: A decision by either the DOC or OIG concerning the hiring, assignment, or retention of an individual or other personnel action; the issuance, renewal, retention, or revocation of a security clearance; the execution of a security or suitability investigation; the letting of a contract; or the issuance, retention, or revocation of a license, grant, award, contract, or other benefit to the extent the information is relevant and necessary to a decision by the DOC or OIG on the matter.
11. A record from this system of records may be disclosed, as a routine use, to a Federal, State, local, tribal, territorial, foreign, international, or other public authority in response to its request in connection with: The hiring, assignment, or retention of an individual; the issuance, renewal, retention, or revocation of a security clearance; the reporting of an investigation of an individual; the execution of a security or suitability investigation; the letting of a contract; or the issuance, retention, or revocation of a license, grant, award, contract, or other benefit conferred by that entity to the extent that the information is relevant and necessary to the requesting entity's decision on the matter.
12. A record in this system of records may be disclosed, as a routine use, in the event that a record, either by itself or in combination with other information, indicates a violation or a potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto; or a violation or potential violation of a contract provision. In these circumstances, the relevant records in the system may be referred, as a routine use, to the appropriate agency or entity, whether Federal, State, local, tribal, territorial, foreign, or international charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, rule, regulation, order, or contract.
13. A record in this system of records may be disclosed, as a routine use, to any source from which additional
14. A record in this system of records may be disclosed, as a routine use, to a foreign government or international organization pursuant to an international treaty, convention, implementing legislation, or executive agreement entered into by the United States.
15. A record in this system of records may be disclosed, as a routine use, to contractors, grantees, consultants, or volunteers performing or working on a contract, service, grant, cooperative agreement, job, or other activity for the DOC or OIG, who have a need to access the information in the performance of their duties or activities. When appropriate, recipients will be required to comply with the requirements of the Privacy Act of 1974 as provided in 5 U.S.C. 552a(m).
16. A record in this system of records may be disclosed, as a routine use, to representatives of the Office of Personnel Management, the Office of Special Counsel, the Merit Systems Protection Board, the Federal Labor Relations Authority, the Equal Employment Opportunity Commission, the Office of Government Ethics, and other Federal agencies in connection with their efforts to carry out their responsibilities to conduct examinations, investigations, and/or settlement efforts, in connection with administrative grievances, complaints, claims, or appeals filed by an employee, and such other functions promulgated in 5 U.S.C. 1205-06.
17. A record in this system of records may be disclosed, as a routine use, to a grand jury agent pursuant to a Federal or State grand jury subpoena or to a prosecution request that such record be released for the purpose of its introduction to a grand jury.
18. A record in this system of records may be disclosed, as a routine use, to the Departments of the Treasury and Justice in circumstances in which OIG seeks to obtain, or has in fact obtained, an ex parte court order to obtain tax return information from the Internal Revenue Service.
19. A record in this system of records may be disclosed, as a routine use, to any Federal official charged with the responsibility to conduct qualitative assessment reviews of internal safeguards and management procedures employed in investigative operations for purposes of reporting to the President and Congress on the activities of OIG. This disclosure category includes other Federal Offices of Inspectors General and members of the Council of Inspectors General on Integrity and Efficiency, and officials and administrative staff within their investigative chain of command, as well as authorized officials of DOJ and its component, the Federal Bureau of Investigation.
20. A record in this system of records may be disclosed, as a routine use, to appropriate agencies, entities, and persons when (1) it is suspected or determined that the security or confidentiality of information in the system of records has been compromised; (2) it is determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identify theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by OIG, DOC, or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with efforts to respond to the suspected or confirmed compromise and to prevent, minimize, or remedy such harm.
21. A record in this system of records may be disclosed, as a routine use, to the public or to the media for release to the public when the matter under investigation has become public knowledge or the Inspector General determines that such disclosure is necessary to preserve confidence in the integrity of the Inspector General audit, inspection, review, or investigative process, or is necessary to demonstrate the accountability of DOC employees, officers or individuals covered by the system, unless it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
22. A record in this system of records may be disclosed, as a routine use, to Congress, congressional committees, or the staffs thereof, in order to fulfill the Inspector General's responsibility, as mandated by the Inspector General Act of 1978, to keep the Congress, in connection with its oversight and legislative functions concerning the administration of programs and operations administered or financed by DOC, fully and currently informed concerning fraud and other serious problems, abuses, and deficiencies concerning the administration of programs and operations administered or financed by DOC.
None.
Paper records and other media (photographs, audio recording, diskettes, CDs, etc.) are stored in locked containers in a secured area. Electronic records are maintained on servers, which house OIG's case management system and electronic discovery tool. Servers are maintained in a secured, restricted-area facility.
Electronic searches may be performed by search criteria that include case numbers, names of individuals or organizations, and other key word search variations.
Paper records are retrieved by indices cross-referenced to file numbers.
Paper records are kept in locked cabinets, secured rooms, in a guarded building, and used only by authorized screened personnel. Electronic records are stored on servers maintained in a locked facility that is secured at all times by security systems and video cameras. Data in the system are encrypted and password protected. Access to electronic records is restricted to DOC OIG staff and contractors individually authorized to access the case management or electronic discovery system. Passwords are changed periodically, in accordance with OIG policy. Backup tapes are stored in a locked and controlled room in a secure off-site facility.
Records are retained and disposed of in accordance with the DOC OIG Records Retention Schedules approved by the National Archives and Records Administration.
Assistant Inspector General for Investigations, Room 7898c, Office of Inspector General, United States Department of Commerce, 1401 Constitution Ave. NW., Washington, DC 20230.
The Inspector General has exempted this system from the procedures of the Privacy Act relating to individuals' requests for notification of the existence of records on themselves.
The Inspector General has exempted this system from the access procedures of the Privacy Act.
The Inspector General has exempted this system from the contest procedures of the Privacy Act.
DOC OIG collects information from a wide variety of sources, including information from the DOC and other Federal, State, and local agencies, subjects, witnesses, complainants, victims, confidential and non-confidential sources, individuals, and non-governmental entities.
Under 5 U.S.C. 552a(j)(2), the head of any agency may exempt any system of records within the agency from certain provisions of the Privacy Act of 1974, if the agency or component that maintains the system performs as its principal function any activities pertaining to the enforcement of criminal laws. The Inspector General Act of 1978, 5 U.S.C. App. 3, as amended, mandates the Inspector General to recommend policies for, and to conduct, supervise and coordinate activities in the Department and between the Department and other Federal, State and local government agencies with respect to all matters relating to the prevention and detection of fraud in programs and operations administered or financed by the Department, and to the identification and prosecution of participants in such fraud. Under the Act, whenever the Inspector General has reasonable grounds to believe there has been a violation of Federal criminal law, the Inspector General must report the matter expeditiously to the Attorney General. In addition to these principal functions pertaining to the enforcement of criminal laws, the Inspector General may receive and investigate complaints on information from various sources concerning the possible existence of activities constituting violations of law, rules or regulations, or mismanagement, gross waste of funds, abuses of authority or substantial and specific danger to the public health and safety. The provisions of the Privacy Act of 1974 from which exemptions are claimed under 5 U.S.C. 552a(j)(2) are as follows: 5 U.S.C. 552a(c)(3) and (4); 5 U.S.C. 552a(d); 5 U.S.C. 552a(e)(1), (2) and (3); 5 U.S.C. 552a(e)(4)(G), (H), and (I); 5 U.S.C. 552a(e)(5) and (8); 5 U.S.C. 552a(f); 5 U.S.C. 552a(g).
To the extent that the exemption under 5 U.S.C. 552a(j)(2) is held to be invalid, then the exemptions under 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5) are claimed for all material which meets the criteria of these three subsections.
Provisions of the Privacy Act of 1974 from which exemptions are claimed under 5 U.S.C. 552a(k)(1), (k)(2) and (k)(5) are as follows: 5 U.S.C. 552a(c)(3); 5 U.S.C. 552a(d); 5 U.S.C. 552a(e)(1); 5 U.S.C. 552a(e)(4)(G), (H), and (I); 5 U.S.C. 552a(f).
Reasons for exemptions: In general, the exemption of this information and material is necessary in order to accomplish the law enforcement function of the Office of Inspector General, to prevent disclosure of classified information as required by Executive Order, to prevent subjects of investigations from frustrating the investigatory process, to prevent the disclosure of investigative techniques, to fulfill commitments made to protect the confidentiality of sources, to maintain access to sources of information, and to avoid endangering these sources and law enforcement personnel. The detailed reasons for exemptions are as follows.
Reasons for exemptions under 5 U.S.C. 552a(j)(2) and (k)(2):
(1) 5 U.S.C. 552a(c)(3) requires that upon request, an agency must give an individual named in a record an accounting which reflects the disclosure of the record to other persons or agencies. This accounting must state the date, nature and purpose of each disclosure of the record and the name and address of the recipient. The application of this provision would alert subjects of an investigation to the existence of the investigation and that such persons are subjects of that investigation. Since release of such information to subjects of an investigation would provide the subjects with significant information concerning the nature of the investigation, it could result in the altering or destruction of documentary evidence, improper influencing of witnesses, and other activities that could impede or compromise the investigation.
(2) 5 U.S.C. 552a(c)(4), (d), (e)(4)(G) and (H), (f) and (g) relate to an individual's right to be notified of the existence of records pertaining to such individual; requirements for identifying an individual who requests access to records; the agency procedures relating to access to records and the contest of information contained in such records; and the civil remedies available to the individual in the event of adverse determinations by an agency concerning access to or amendment of information contained in records systems. This system is exempt from the foregoing provisions for the following reasons: To notify an individual at the individual's request of the existence of records in an investigative file pertaining to such individual, or to grant access to an investigative file could interfere with investigative and enforcement proceedings, deprive co-defendants of a right to a fair trial or other impartial adjudication, constitute an unwarranted invasion of personal privacy of others, disclose the identity or confidential sources, reveal confidential information supplied by these sources and disclose investigative techniques and procedures.
(3) 5 U.S.C. 552a(e)(4)(I) requires the publication of the categories of sources of records in each system of records. The application of this provision could disclose investigative techniques and procedures and cause sources to refrain from giving such information because of fear of reprisal, or fear of breach of promises of anonymity and confidentiality. This would compromise the ability to conduct investigations, and to identify, detect, and apprehend violators.
(4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its records only such information about an individual that is relevant and necessary to accomplish a purpose of the agency required by statute or Executive Order. An exemption from the foregoing is needed:
a. Because it is not possible to detect relevance or necessity of specific information in the early stages of a criminal or other investigation.
b. Relevance and necessity are questions of judgment and timing. What appears relevant and necessary when collected may ultimately be determined to be unnecessary. It is only after the information is evaluated that the relevance and necessity of such information can be established.
c. In any investigation the Inspector General may obtain information concerning the violations of laws other than those within the scope of his or her jurisdiction. In the interest of effective law enforcement, the Inspector General should retain this information as it may aid in establishing patterns of criminal activity, and provide leads for those law enforcement agencies charged with enforcing other segments of criminal or civil law.
d. In interviewing persons, or obtaining other forms of evidence during an investigation, information may be supplied to the investigator which related to matters incidental to the main purpose of the investigation but which may relate to matters under the investigative jurisdiction of another
(5) 5 U.S.C. 552a(e)(2) requires an agency to collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privilege under Federal programs. The application of the provision would impair investigations of illegal acts, violations of the rules of conduct, merit system and any other misconduct for the following reasons:
a. In certain instances the subject of an investigation cannot be required to supply information to investigators. In those instances, information relating to a subject's illegal acts, violations of rules of conduct, or any other misconduct, etc., must be obtained from other sources.
b. Most information collected about an individual under investigation is obtained from third parties such as witnesses and informers. It is not feasible to rely upon the subject of the investigation as a source for information regarding his or her activities.
c. The subject of an investigation will be alerted to the existence of an investigation if any attempt is made to obtain information from the subject. This could afford the individual the opportunity to conceal any criminal activities to avoid apprehension.
d. In any investigation, it is necessary to obtain evidence from a variety of sources other than the subject of the investigation in order to verify the evidence necessary for successful litigation.
(6) 5 U.S.C. 552a(e)(3) requires that an agency must inform the subject of an investigation who is asked to supply information of:
a. The authority under which the information is sought and whether disclosure of the information is mandatory or voluntary,
b. The purposes for which the information is intended to be used,
c. The routine uses which may be made of the information, and
d. The effects on the subject, if any, of not providing the requested information.
The reasons for exempting this system of records from the foregoing provision are as follows:
(i) The disclosure to the subject of the investigation as stated in (b) above would provide the subject with substantial information relating to the nature of the investigation and could impede or compromise the investigation.
(ii) If the subject were informed of the information required by this provision, it could seriously interfere with undercover activities requiring disclosure of undercover agents' identity and impairing their safety, as well as impairing the successful conclusion of the investigation.
(iii) Individuals may be contacted during preliminary information-gathering in investigations before any individual is identified as the subject of an investigation. Informing the individual of the matters required by this provision would hinder or adversely affect any present or subsequent investigations.
(7) 5 U.S.C. 552a(e)(5) requires that records be maintained with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in making any determination about an individual. Because the law defines “maintain” to include the collection of information, complying with this provision would prevent the collection of any data not shown to be accurate, relevant, timely, and complete at the moment of its collection. In gathering information during the course of an investigation it is not possible to determine this prior to collection of the information. Facts are first gathered and then placed into a logical order which objectively proves or disproves criminal behavior on the part of the suspect. Material which may seem unrelated, irrelevant, incomplete, untimely, etc., may take on added meaning as an investigation progresses. The restrictions in this provision could interfere with the preparation of a complete investigative report.
(8) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable efforts to serve notice on an individual when any record of such individual is made available to any persons under compulsory legal process when such process becomes a matter of public record. The notice requirements of this provision could prematurely reveal an ongoing criminal investigation to the subject of the investigation.
Reasons for exemptions under 5 U.S.C. 552a(k)(1):
(1) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of disclosures of records available to individuals named in the record at their request. These accountings must state the date, nature and purpose of each disclosure of the record and the name and address of the recipient. The application of this provision would alert subjects of an investigation to the existence of the investigation, and that such persons are subjects of that investigation, information which if known might cause damage to national security.
(2) 5 U.S.C. 552a(d), (e)(4)(G) and (H), and (f) relate to an individual's right to be notified of the existence of records pertaining to such individual; requirements for identifying an individual who requests access to records; and the agency procedures relating to access to records, and the contest of information contained in such records. This system is exempt from the foregoing provisions for the following reasons: To notify an individual at the individual's request of the existence of records in an investigative file pertaining to such individual or to grant access to an investigative file could interfere with investigations undertaken in connection with national security; or could disclose the identity of sources kept secret to protect national security or reveal confidential information supplied by these sources.
(3) 5 U.S.C. 552a(e)(4)(I) requires the publication of the categories of sources of records in each system of records. The application of this provision could disclose the identity of sources kept secret to protect national security.
(4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its records only such information about an individual that is relevant and necessary to accomplish a purpose of the agency required by statute or Executive Order. An exemption from the foregoing is needed:
a. Because it is not possible to detect relevance or necessity of specific information in the early stages of an investigation involving national security matters.
b. Relevance and necessity are questions of judgment and timing. What appears relevant and necessary when collected may ultimately be determined to be unnecessary. It is only after the information is evaluated that the relevance and necessity of such information can be established.
c. In any investigation the Inspector General may obtain information concerning the violators of laws other than those within the scope of his or her jurisdiction. In the interests of effective law enforcement, the Inspector General should retain this information as it may aid in establishing patterns of criminal activity, and provide leads for those law enforcement agencies charged with enforcing other segments of criminal or civil law.
d. In interviewing persons, or obtaining forms of evidence during an investigation, information may be supplied to the investigator which relate to matters incidental to the main purpose of the investigation but which
Reasons for exemptions under 5 U.S.C. 552a(k)(5):
(1) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of disclosures of records available to individuals named in the records at their request. These accountings must state the date, nature and purpose of each disclosure of the record and the name and address of the recipient. The application of this provision would alert subjects of an investigation to the existence of the investigation and that such persons are subjects of that investigation. Since release of such information to subjects of an investigation would provide the subject with significant information concerning the nature of the investigation, it could result in the altering or destruction of documentary evidence, improper influencing of witnesses, and other activities that could impede or compromise the investigation.
(2) 5 U.S.C. 552a(d), (e)(4)(G) and (H), and (f) relate to an individual's right to be notified of the existence of records pertaining to such individual; requirements for identifying an individual who requests access to records; and the agency procedures relating to access to records and the contest of information contained in such records. This system is exempt from the foregoing provisions for the following reasons: To notify an individual at the individual's request of the existence of records in an investigative file pertaining to such individual or to grant access to an investigative file could interfere with investigative and enforcement proceedings; co-defendants of a right to a fair trial; constitute an unwarranted invasion of personal privacy of others; disclose the identity of confidential sources and reveal confidential information supplied by these sources; and disclose investigative techniques and procedures.
(3) 5 U.S.C. 552a(e)(4)(I) requires the publication of the categories of sources of records in each system of records. The application of this provision could disclose investigative techniques and procedures and cause sources to refrain from giving such information because of fear of reprisal, or fear of breach of promises of anonymity and confidentiality. This would compromise the ability to conduct investigations, and to make fair and objective decisions on questions of suitability for Federal employment and related issues.
(4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its records only such information about an individual that is relevant and necessary to accomplish a purpose of the agency required by statute or Executive Order. An exemption from the foregoing is needed:
a. Because it is not possible to detect relevance or necessity of specific information in the early stages of an investigation.
b. Relevance and necessity are questions of judgment and timing. What appears relevant and necessary when collected may ultimately be determined to be unnecessary. It is only after that information is evaluated that the relevance and necessity of such information can be established.
c. In any investigation the Inspector General may obtain information concerning the violations of laws other than those within the scope of his or her jurisdiction. In the interest of effective law enforcement, the Inspector General should retain this information as it may aid in establishing patterns of criminal activity, and provide leads for those law enforcement agencies charged with enforcing other segments of criminal or civil law.
d. In interviewing persons, or obtaining other forms of evidence during an investigation, information may be supplied to the investigator which relate to matters incidental to the main purpose of the investigation but which may relate to matters under investigative jurisdiction of another agency. Such information cannot readily be segregated.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the “Department”) is conducting the fifth administrative review of the antidumping duty order on certain steel threaded rod (“STR”) from the People's Republic of China (“PRC”),
Julia Hancock or Jerry Huang, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1394 or (202) 482-4047, respectively.
On May 29, 2014, the Department initiated an administrative review of the antidumping duty order on certain steel threaded rod from the PRC for the period, April 1, 2013, through March 31, 2014, for 92 companies.
The merchandise covered by the order includes steel threaded rod. The subject merchandise is currently classifiable under subheading 7318.15.5051, 7318.15.5056, 7318.15.5090, and 7318.15.2095 of the United States Harmonized Tariff Schedule (“HTSUS”). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise is dispositive.
As noted above, a review was requested, but not rescinded, for nine companies. Aside from the mandatory respondents, Gem-Year and RMB/IFI Group, the remaining seven companies are not eligible for separate rate status or rescission because none submitted a completed separate rate application or certification.
The Department's change in policy regarding conditional review of the PRC-wide entity applies to this administrative review.
The Department conducted this review in accordance with section 751(a)(1)(B) of the Act. For a full description of the methodology underlying our conclusions,
The Department preliminarily determines that, for the period April 1, 2013, through March 31, 2014, the companies identified in Appendix I to this notice are part of the PRC-wide entity.
Interested parties may submit case briefs within 30 days after the date of publication of these preliminary results of review.
Any interested party may request a hearing within 30 days of publication of this notice.
The Department intends to issue the final results of this administrative review, which will include the results of our analysis of all issues raised in the case briefs, within 120 days of publication of these preliminary results in the
Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.
For any individually examined respondent whose weighted average dumping margin is above
The Department announced a refinement to its assessment practice in non-market economy (“NME”) cases.
In accordance with section 751(a)(2)(C) of the Act, the final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.
The following cash deposit requirements will be effective upon publication of the final results of this 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 sections 751(a)(2)(C) of the Act: (1) For any companies listed that have a separate rate, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or
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 the POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
These preliminary results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on polyethylene retail carrier bags (PRCBs) from Thailand.
Dmitry Vladimirov 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) 482-0665 and 202-482-1690, respectively.
The merchandise subject to the antidumping duty order is polyethylene retail carrier bags, which are currently classified under subheading 3923.21.0085 of the Harmonized Tariff Schedule of the United States (HTSUS). The HTSUS number is provided for convenience and customs purposes. A full description of the scope of the order is contained in the Preliminary Decision Memorandum.
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if a party that requested the review withdraws the request within 90 days of the date of publication of the notice of initiation of the requested review. Except for Beyond Packaging Co., Ltd. (Beyond Packaging), the petitioners
In accordance with sections 776(a) and (b) of the Tariff Act of 1930, as amended (the Act), we relied on facts available with an adverse inference with respect to Beyond Packaging, the sole company selected for individual examination and sole company in this review. Thus, we preliminarily assigned a rate of 122.88 percent as the weighted-average dumping margin for Beyond Packaging. For a full description of the methodology underlying our conclusions,
As a result of this review, we preliminarily determine that the following weighted-average dumping margin on PRCBs from Thailand exists for the period August 1, 2013, through July 31, 2014, at the following rate:
Pursuant to 19 CFR 351.309(c), interested parties may submit case briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance within 30 days after the date of publication of this notice.
When submitting a document to the Department
The Department intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, unless extended, pursuant to section 751(a)(3)(A) of the Act.
Upon completion of the administrative review, the Department shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review. For the final results, if we continue to rely on adverse facts available to establish Beyond Packaging's weighted-average dumping margin, we will instruct CBP to apply an
For the companies for which the review is rescinded, the antidumping duty shall be assessed at the rate equal to the cash deposit of the estimated antidumping duty required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(2). We will instruct CBP accordingly.
We intend to issue liquidation instructions to CBP 15 days after publication of the final results of review.
The following deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of PRCBs from Thailand entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for Beyond Packaging will be equal to the weighted-average dumping margin established in the final results of this review; (2) for merchandise exported by manufacturers or exporters not covered in this review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the less-than-fair-value investigation but the manufacturer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the manufacturer of the merchandise; (4) if neither the exporter nor the manufacturer has its own rate, the cash deposit rate will be 4.69 percent.
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the countervailing duty (CVD) order on drawn stainless steel sinks (sinks) from the People's Republic of China (PRC). The period of review (POR) is August 6, 2012, through December 31, 2013. We preliminarily find that Guangdong Dongyuan Kitchenware Industrial Co., Ltd. (Dongyuan) received countervailable subsidies during the POR. We are rescinding the review with respect to Foshan Zhaoshun Trade Co., Ltd. (Zhaoshun), Zhongshan Superte Kitchenware Co., Ltd. (Superte), Zhongshan Newecan Enterprise Development Corporation Limited (Newecan), Zhongshan Silk Imp. & Exp. Group Co., Ltd. of Guangdong (Zhongshan Silk). Further, we preliminarily find that Shunde Native Produce Import and Export Co., Ltd. of Guangdong (Native Produce) did not have any reviewable entries during the POR. Interested parties are invited to comment on these preliminary results.
Jennifer Meek or Joshua Morris, 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) 482-2778 and (202) 482-1779, respectively.
Drawn stainless steel sinks are sinks with single or multiple drawn bowls, with or without drain boards, whether finished or unfinished, regardless of type of finish, gauge, or grade of sinks. The products covered by this order are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under statistical reporting number 7324.10.0000. Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of the order is dispositive.
A full description of the scope of the order is contained in the memorandum from Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance, to Paul Piquado, Assistant Secretary for Enforcement and Compliance, “Decision Memorandum for Preliminary Results of Countervailing Duty Administrative Review: Drawn Stainless Steel Sinks from the People's Republic of China” dated concurrently with this notice (Preliminary Decision Memorandum), which is hereby adopted by 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
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 program found countervailable, we preliminarily determine that there is a subsidy,
In making the preliminary findings, we relied, in part, on facts available and, because the Government of the PRC did not act to the best of its ability to respond to the Department's requests for information, we applied an adverse inference in selecting from among the facts otherwise available.
As discussed in the Preliminary Decision Memorandum, the companies Zhaoshun, Superte, Newecan, and Zhongshan Silk timely withdrew their requests for administrative review of themselves.
Based on our analysis of U.S. Customs and Border Protection (CBP) information and information provided by Native Produce, we preliminarily determine that Native Produce did not
In accordance with 19 CFR 351.221(b)(4)(i), we calculated an individual subsidy rate for Dongyuan for the period August 6, 2012, through December 31, 2013. We calculated a rate for 2012, which will be applicable to entries made during the period August 6, 2012, through December 31, 2012, and a rate for 2013, which will be applicable to entries during the period January 1, 2013, through December 31, 2013. We preliminarily find that the net subsidy rates for Dongyuan are as follows:
The Department intends to disclose calculations performed for these preliminary results to the parties within five days of the date of publication of this notice.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce within 30 days after the date of publication of this notice.
All submissions, with limited exceptions, must be filed electronically using ACCESS.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, the Department will issue the final results of this administrative review, including our analysis of and responses to issues raised by the parties in their comments, within 120 days after issuing these preliminary results.
In accordance with 19 CFR 351.221(b)(4)(i), we assigned a subsidy rate for the producer/exporter subject to this administrative review. Upon issuance of the final results, the Department shall determine, and CBP shall assess, countervailing duties on all appropriate entries covered by this review. We intend to issue instructions to CBP 15 days after publication of the final results of this review.
For the rescinded companies, countervailing duties shall be assessed at rates equal to the cash deposit of estimated countervailing duties required at the time of entry, or withdrawal from warehouse, for consumption, during the period August 6, 2012, through December 31, 2013, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of this notice.
Also in accordance with section 751(a)(2)(C) of the Act, the Department intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amount shown above for Dongyuan, 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 review. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits at the most-recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposit requirements, when imposed, shall remain in effect until further notice.
These preliminary results are issued and published in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213 and 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Department) is conducting an administrative review of the antidumping duty order on drawn stainless steel sinks (drawn sinks) from the People's Republic of China (PRC). The administrative review covers 11 exporters, of which the Department selected two as mandatory respondents for individual examination (
The Department preliminarily finds that Dongyuan and Yingao both made sales of subject merchandise at less than normal value (NV) during the POR. If these preliminary results are adopted in the final results of this review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. Interested parties are invited to comment on these preliminary results.
Brian C. Smith or Brandon Custard, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1766 and (202) 482-1823, respectively.
The products covered by the order include drawn stainless steel sinks. Imports of subject merchandise are currently classified under the Harmonized Tariff Schedule of the United States (HTSUS) subheadings 7324.10.0000 and 7324.10.0010. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.
The Department conducted this review in accordance with section 751(a)(2)(B) of the Tariff Act of 1930, as amended (the Act). Export prices have been calculated in accordance with section 772 of the Act. Because the PRC is a non-market economy (NME) within the meaning of section 771(18) of the Act, NV has been calculated in accordance with section 773(c) of the Act.
For a full description of the methodology underlying our conclusions,
Because Feidong Import & Export Co., Ltd., Shunde Native Produce Import & Export Co, Ltd. of Guangdong, and Zhongshan Silk Import & Export Group Co., Ltd. of Guangdong did not demonstrate they were entitled to a separate rate, the Department preliminarily finds these companies to be part of the PRC-wide entity.
The Department preliminarily determines that the following weighted-average dumping margins exist for the period October 4, 2012, through March 31, 2014:
The Department intends to disclose to the parties the calculations performed for these preliminary results within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit case briefs no later than 30 days after the date of publication of these preliminary results of review.
Any interested party may request a hearing within 30 days of publication of this notice.
Unless otherwise extended, the Department intends to issue the final results of this administrative review, which will include the results of its analysis of issues raised in the case briefs, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.
Upon issuance of the final results, 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 (
For the respondents which were not selected for individual examination in this administrative review and which qualified for a separate rate, the assessment rate will be equal to the average of the weighted-average dumping margins assigned to Dongyuan and Yingao in the final results of this review.
For the final results, if we continue to treat the three companies identified above as part of the PRC-wide entity, we will instruct CBP to apply an
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 databases submitted by companies individually examined during this review, the Department will instruct CBP to liquidate such entries at the PRC-wide rate. In addition, if the Department determines that an exporter under review had no shipments of the 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 this administrative review for all shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the companies listed above that have a separate rate, the cash deposit rate will be that rate established in the final results of this review (except, if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results of reviews in accordance with sections 751(a)(l) and 777(i)(l) of the Act.
Enforcement and Compliance, International Trade Administration, Commerce.
On July 29, 2014, pursuant to allegations by Polyplex USA LLC and Flex USA Inc., the Department of Commerce (the Department) initiated an anti-circumvention inquiry to determine whether imports of polyethylene terephthalate film, sheet, and strip (PET Film) from the Kingdom of Bahrain (Bahrain) produced by JBF Bahrain S.P.C. (JBF Bahrain) are circumventing the antidumping order on PET Film from the United Arab Emirates (UAE). We preliminarily determine that PET Film produced by JBF Bahrain in
Andrew Huston, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4261.
The products covered by the order are all gauges of raw, pre-treated, or primed polyethylene terephthalate film, whether extruded or co-extruded. Excluded are metallized films and other finished films that have had at least one of their surfaces modified by the application of a performance-enhancing resinous or inorganic layer more than 0.00001 inches thick. Also excluded is roller transport cleaning film which has at least one of its surfaces modified by application of 0.5 micrometers of SBR latex. Tracing and drafting film is also excluded. Polyethylene terephthalate film is classifiable under subheading 3920.62.00.90 of the Harmonized Tariff Schedule of the United States (HTSUS). While HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of the order is dispositive.
This anti-circumvention inquiry covers PET Film produced in Bahrain by JBF Bahrain from inputs (PET chips and silica chips) manufactured in the UAE, and that is subsequently exported from Bahrain to the United States.
The Department has conducted this preliminary determination of circumvention in accordance with section 781(b) of the Act and 19 CFR 351.225(h). For a full description of the methodology underlying our conclusions,
As detailed in the Preliminary Decision Memorandum, the Department has preliminarily determined that the process of completion or assembly of PET Film produced by JBF Bahrain is not minor or insignificant, pursuant to section 781(b)(2) of the Act, nor is the value of the merchandise produced in the UAE a significant portion of the value of PET film exported from Bahrain to the United States, pursuant to section 781(b)(1)(D) of the Act. Therefore, the Department preliminarily determines that PET Film produced by JBF Bahrain in Bahrain using inputs from the UAE, and exported from Bahrain to the United States, is not circumventing the
The Department intends to disclose the analysis used in these preliminary findings within five days of publication of this notice. Interested parties are invited to comment on the preliminary results of this review. Pursuant to 19 CFR 351.309(b)(2), interested parties may submit case briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may not be filed later than five days after the time limit for filing case briefs.
Any interested party who wishes to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance within 30 days after the day of publication of this notice pursuant to 19 CFR 351.310(c). A request should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed.
According to 19 CFR 351.225(f)(5), the Department will normally issue a final scope ruling in a circumvention inquiry within 300 days of the date of the initiation inquiry. Because of the extensive cost, investment, and research and development information required for this analysis from JBF, the Department is extending the deadline for the final ruling in this inquiry. The final determination with respect to this anti-circumvention inquiry, including results of the Department's analysis of any written comments, will be issued no later than July 31, 2015.
This preliminary negative circumvention determination is published in accordance with section 781(b) of the Act and 19 CFR 351.225.
Enforcement and Compliance, International Trade Administration, Commerce.
The Department of Commerce (“Department”) is amending the
Andrew Medley, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone 202-482-4987.
On April 10, 2015, the Department disclosed to interested parties its calculations for the
The merchandise covered by this order includes new pneumatic tires designed for off-the-road and off-highway use, subject to certain exceptions. The subject merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings: 4011.20.10.25, 4011.20.10.35, 4011.20.50.30, 4011.20.50.50, 4011.61.00.00, 4011.62.00.00, 4011.63.00.00, 4011.69.00.00, 4011.92.00.00, 4011.93.40.00, 4011.93.80.00, 4011.94.40.00, and 4011.94.80.00. The HTSUS subheadings are provided for convenience and customs purposes only; the written product description of the scope of the order is dispositive.
Section 751(h) of the Tariff Act of 1930, as amended (“the Act”), and 19 CFR 351.224(f) define a “ministerial error” as an error “in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any similar type of unintentional error which the Secretary considers ministerial.” We analyzed Petitioners' ministerial error comments and determined, in accordance with section 751(h) of the Act and 19 CFR 351.224(e), that we made a ministerial error in our calculation of GTC's margin for the
In accordance with section 751(h) of the Act and 19 CFR 351.224(e), we are amending the
As a result of correcting this ministerial error, we determine that the following weighted-average dumping margins exist for the POR:
The
For customers or importers of GTC for which we do not have entered value, we calculated importer- (or customer-) specific antidumping duty assessment amounts based on the ratio of the total amount of dumping duties calculated for the examined sales of subject merchandise to the total sales quantity of those same sales.
Consistent with the Department's assessment practice in non-market economy cases,
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the amended final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash deposit rate will be equal to the weighted-average dumping margin identified in the “Amended Final Results” section; (2) for previously
This notice 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 and/or countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of the antidumping and/or countervailing duties 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 the APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We will disclose the calculations performed for these amended final results to interested parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
These amended final results of review are issued and published in accordance with section 751(h) of the Tariff Act of 1930 Act and 19 CFR 351.224(f).
International Trade Administration, U.S. Department of Commerce.
Notice of open meetings.
This notice sets forth the schedule and proposed topics of discussion for public meetings of the Advisory Committee on Supply Chain Competitiveness (Committee).
This conference call meeting will be held on May 21, 2015, from 10:00 a.m. to 11:00 a.m., Eastern Standard Time (EST).
Richard Boll, Office of Supply Chain, Professional & Business Services, International Trade Administration. (Phone: (202) 482-1135 or Email:
The Committee was established under the discretionary authority of the Secretary of Commerce and in accordance with the Federal Advisory Committee Act (5 U.S.C. App. 2). It provides advice to the Secretary of Commerce on the necessary elements of a comprehensive policy approach to supply chain competitiveness designed to support U.S. export growth and national economic competitiveness, encourage innovation, facilitate the movement of goods, and improve the competitiveness of U.S. supply chains for goods and services in the domestic and global economy; and provides advice to the Secretary on regulatory policies and programs and investment priorities that affect the competitiveness of U.S. supply chains. For more information about the Committee visit:
Committee members are expected to deliberate and vote on the Trade and Competitiveness subcommittee's recommendation to Secretary Pritzker, which generally urges the Administration to expand market access for U.S. firms to international markets, implement the WTO Trade Facilitation Agreement (TFA), support customs trade transformation initiatives, and ensure our trading partners' compliance with our trade agreements. This recommendation, available at:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Council's Mackerel-Squid-Butterfish (MSB) Monitoring Committee will meet via webinar to develop recommendations for future MSB specifications.
The meeting will be Thursday, May 21, 2015, at 9 a.m.
The meeting will be held via webinar, but anyone can also attend at the Council office address (see below). The webinar link is:
Christopher M. Moore, Ph.D. Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 526-5255. The Council's Web site,
The Council's Mackerel-Squid-Butterfish (MSB) Monitoring Committee will meet to develop recommendations for future MSB specifications. There will be time for public questions and comments. The Council utilizes the Monitoring Committee recommendations at each June Council meeting when setting the subsequent years' MSB specifications.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531 et. seq.) imposed prohibitions against the taking of endangered species. In 1982, Congress revised the ESA to allow permits authorizing the taking of endangered species incidental to otherwise lawful activities. The corresponding regulations (50 CFR part 222.222) established procedures for persons to apply for such a permit. In addition, the regulations set forth specific reporting requirements for such permit holders.
The regulations contain three sets of information collections: (1) Applications for incidental take permits, (2) applications for certificates of inclusion, and (3) reporting requirements for permits issued. Certificates of inclusion are only required if a general permit is issued to a representative of a group of potential permit applicants, rather than requiring each entity to apply for and receive a permit.
The required information is used to evaluate the impacts of the proposed activity on endangered species, to make the determinations required by the ESA prior to issuing a permit, and to establish appropriate permit conditions.
When a species is listed as threatened, section 4(d) of the ESA requires the Secretary to issue whatever regulations are deemed necessary or advisable to provide for conservation of the species. In many cases those regulations reflect blanket application of the section 9 take prohibition. However, the National Marine Fisheries Service (NMFS) recognizes certain exceptions to that prohibition, including habitat restoration actions taken in accord with approved state watershed action plans. While watershed plans are prepared for other purposes in coordination with or fulfillment of various state programs, a watershed group wishing to take advantage of the exception for restoration activities (rather than obtaining a section 10 permit) would have to submit the plan for NMFS review.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Bureau of Consumer Financial Protection.
Notice; extension of comment period.
This notice corrects the docket number and extends the comment period in a notice published in the
The comment period for the notice titled Agency Information Collection Activities: Submission for OMB Review; Comment Request published April 21, 2015, at 80 FR 22168, is extended. Written comments are encouraged and must be received on or before June 8, 2015 to be assured of consideration.
You may submit comments, identified by the title of the information
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Requests for additional information should be directed to the Consumer Financial Protection Bureau, (Attention: PRA Office), 1700 G Street NW., Washington, DC 20552, (202) 435-9575, or email:
In the
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 approval for an existing information collection titled, “Gramm-Leach-Bliley Act (Regulation P) 12 CFR 1016.”
Written comments are encouraged and must be received on or before July 6, 2015 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:
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Documentation prepared in support of this information collection request is available at
Tuesday May 12, 2015, 9 a.m.-11 a.m.
Hearing Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Commission Meeting—Open to the Public
Decisional Matter: Fiscal Year 2015 Mid-Year Review and Operating Plan.
A live webcast of the Meeting can be viewed at
For a recorded message containing the latest agenda information, call (301) 504-7948.
Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, (301) 504-7923.
Air Force Scientific Advisory Board, Department of the Air Force, Department of Defense.
Meeting Notice.
Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the Department of Defense announces that the United States Air Force (USAF) Scientific Advisory Board (SAB) Summer Session Board Meeting will take place on 24 June 2015 at the SAFTAS Conference and Innovation Conference Center, located on the plaza level of 1550 Crystal Drive in Crystal City, Virgina. The meeting will occur from 8:00 a.m.-3:00 p.m. on Wednesday, 24 June 2015. The session that will be open to the general public will be held from 8:00 a.m. to 9:00 a.m. on 24 June 2015. The purpose of this Air Force Scientific Advisory Board quarterly meeting is to conduct a final review and receive FACA approval of FY15 SAB studies, which consist of: (1) Cyber Vulnerabilities of Embedded Systems on Air And Space Systems, (2) Enhanced Utility of Unmanned Air Vehicles In Contested and Denied Environments, (3) Utility of Quantum Systems for the Air Force. In accordance with 5 U.S.C. 552b, as amended, and 41 CFR 102-3.155, a number of sessions of the USAF SAB Summer Session Board meeting will be closed to the public because they will discuss classified information and matters covered by section 5 U.S.C. 552b(c)(1).
Any member of the public that wishes to attend this meeting or provide input to the USAF SAB must contact the Designated Federal Officer at the phone number or email address listed below at least five working days prior to the meeting date. Please ensure that you submit your written statement in accordance with 41 CFR 102-3.140(c) and section 10(a)(3) of the Federal Advisory Committee Act. Statements being submitted in response to the agenda mentioned in this notice must be received by the Designated Federal Officer at the address listed below at least five calendar days prior to the meeting commencement date. The Designated Federal Officer will review all timely submissions and respond to them prior to the start of the meeting identified in this noice. Written statements received after this date may not be considered by the USAF SAB until the next scheduled meeting.
The USAF SAB meeting organizer, Major Mike Rigoni at,
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice and request for comments regarding a proposed extension of an approved information collection requirement.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), DoD announces the proposed extension of a public information collection requirement and seeks public comment on the provisions thereof. DoD invites comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology. The Office of Management and Budget (OMB) has approved this information collection requirement for use through August 31, 2015. DoD proposes that OMB extend its approval for three additional years.
DoD will consider all comments received by July 6, 2015.
You may submit comments, identified by OMB Control Number 0704-0255, using any of the following methods:
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Comments received generally will be posted without change to
Ms. Tresa Sullivan, 571-372-6089.
DFARS 236.570(a) prescribes use of the clause at DFARS 252.236-7000, Modification Proposals—Price Breakdown, in all fixed-price
DFARS 236.570(b) prescribes use of the following clauses in fixed-price construction contracts and solicitations as applicable:
(1) The clause at DFARS 252.236-7002, Obstruction of Navigable Waterways, requires the contractor to notify the contracting officer of obstructions in navigable waterways.
(2) The clause at DFARS 252.236-7003, Payment for Mobilization and Preparatory Work, requires the contractor to provide supporting documentation when submitting requests for payment for mobilization and preparatory work.
(3) The clause at DFARS 252.236-7004, Payment for Mobilization and Demobilization, permits the contracting officer to require the contractor to furnish cost data justifying the percentage of the cost split between mobilization and demobilization, if the contracting officer believes that the proposed percentages do not bear a reasonable relation to the cost of the work.
DFARS 236.570(c) prescribes use of the following provisions in solicitations for military construction contracts that are funded with military construction appropriations and are estimated to exceed $1,000,000:
(1) The provision at DFARS 252.236-7010, Overseas Military Construction—Preference for United States Firms, when contract performance will be in a United States outlying area in the Pacific or in a country bordering the Arabian Gulf, requires an offeror to specify whether or not it is a United States firm.
(2) The provision at DFARS 252.236-7012, Military Construction on Kwajalein Atoll—Evaluation Preference, when contract performance will be on Kwajalein Atoll, requires an offeror to specify whether it is a United States firm, a Marshallese firm, or other firm.
Department of the Navy, DoD.
Notice.
The following invention is assigned to the United States Government as represented by the Secretary of the Navy and made available for licensing by the Department of the Navy: U.S. Patent Application No. 14/591660—“Use of heptadecanoic acid (C17:0) to detect risk of and treat hyperferritinemia and metabolic syndrome”.
Request for copies of invention disclosures cited should be directed to Space and Naval Warfare Systems Center Pacific, Office of Research and Technology Applications, Code 72120, 53560 Hull St., Bldg. A33 Room 2531, San Diego, CA 92152-5001.
Brian Suh, Office of Research and Technology Applications, Space and Naval Warfare Systems Center Pacific, Code 72120, 53560 Hull St., Bldg. A33 Room 2531, San Diego, CA 92152-5001, telephone 619-553-5118, Email:
35 U.S.C. 207, 37 CFR part 404.
Department of the Navy, DoD.
Notice.
The Department of the Navy hereby gives notice of its intent to grant to Epitracker, LLC, a revocable, nonassignable, partially exclusive license in the United States to practice the Government-Owned inventions described in U.S. Patent Application No. 14/591660—“Use of heptadecanoic acid (C17:0) to detect risk of and treat hyperferritinemia and metabolic syndrome”.
Anyone wishing to object to the grant of this license must file written objections along with supporting evidence, if any, no later than May 22, 2015.
Written objections are to be filed with the Office of Research and Technology Applications, Space and Naval Warfare Systems Center Pacific, Code 72120, 53560 Hull St., Bldg. A33 Room 2531, San Diego, CA 92152-5001.
Brian Suh, Office of Research and Technology Applications, Space and Naval Warfare Systems Center Pacific, Code 72120, 53560 Hull St., Bldg. A33 Room 2531, San Diego, CA 92152-5001, telephone 619-553-5118, E-Mail:
35 U.S.C. 207, 37 CFR part 404.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will analyze the environmental impacts of the Panhandle Backhaul Project and Trunkline Backhaul Project, involving the modification and upgrades of existing facilities by Panhandle Eastern Pipe Line Company, LP (Panhandle) and Trunkline Gas Company, LLC (Trunkline), in the Commission's environmental impact statement (EIS) currently under preparation for the Rover Pipeline Project in Docket No. CP15-93-000. The Panhandle Backhaul Project would modify existing facilities in Michigan, Ohio, Indiana, and Illinois. The Trunkline Backhaul Project would modify existing facilities in Illinois, Tennessee, and Mississippi. Both projects would increase backhaul capacity to flow natural gas volumes from the Rover Pipeline Project. The Commission will use the EIS in its decision-making process to determine whether the projects are in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the Panhandle Backhaul Project and
If you sent comments on these projects to the Commission before the opening of these dockets on February 23, 2015, you will need to file those comments in Docket No. CP15-94-000 for the Panhandle Backhaul Project and Docket No. CP15-96-000 for the Trunkline Backhaul Project to ensure they are considered as part of these proceedings.
This notice is being sent to the Commission's current environmental mailing list for these projects. State and local government representatives should notify their constituents of these proposed projects and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement or lease to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the projects, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility on My Land? What Do I Need To Know?” is available for viewing on the FERC Web site (
For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
You can file your comments electronically using the
You can file your comments electronically by using the
You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the projects' docket numbers (CP15-94-000 for the Panhandle Backhaul Project and CP15-96-000 for the Trunkline Backhaul Project) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
Panhandle and Trunkline are proposing the upgrades and modifications to allow for bi-directional flow of natural gas on their existing pipeline systems. Modifications and upgrades along the Panhandle system would occur at existing facilities in Lenawee County, Michigan; Allen and Defiance Counties, Ohio; Hamilton, Marion, Parke, and Vermillion Counties, Indiana; and Douglas County, Illinois. The Panhandle Backhaul Project would include:
Modifications and upgrades along the Trunkline system would occur at existing facilities in Douglas and Wayne Counties, Illinois; Dyer County, Tennessee; and Tate County, Mississippi. The Trunkline Backhaul Project would include:
The general locations of the Panhandle and Trunkline project facilities are shown in appendix 1.
Construction of the Panhandle facilities would disturb a total of 230.2 acres of land on or surrounding Panhandle's permanent right-of-way or lands leased or owned by Panhandle. Any land disturbance associated with the modifications and upgrades would occur within previously disturbed areas.
Construction of the Trunkline facilities would disturb a total of 204.3 acres of land within the existing facility sites or within Trunkline's permanent right-of-way. Any land disturbance associated with the modifications and upgrades would occur within previously disturbed areas.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EIS we will discuss impacts that could occur as a result of the construction and operation of the
We will also evaluate reasonable alternatives to the proposed projects or portions of the projects, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The FERC staff is in the process of preparing an EIS for the Rover Pipeline Project. Five other agencies are participating as cooperating agencies in the preparation of this EIS: The U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, U.S. Army Corps of Engineers, and Ohio Environmental Protection Agency. With this notice, we are asking other agencies with jurisdiction by law and/or special expertise with respect to environmental issues related the Panhandle and/or Trunkline projects to formally cooperate with us in the preparation of the EIS.
The EIS will present our independent analysis of the issues. We will publish and distribute the draft EIS for public comment. After the comment period, we will consider all timely comments and revise the document, as necessary, before issuing a final EIS. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section, beginning on page 2.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the applicable State Historic Preservation Office(s) (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the projects' potential effects on historic properties.
We will define the project-specific Area of Potential Effects (APE) in consultation with the SHPO(s) as the projects develop. On natural gas facility projects, the APE at a minimum encompasses all areas subject to ground disturbance (examples include construction right-of-way, contractor/pipe storage yards, compressor stations, and access roads). Our EIS for these projects will document our findings on the impacts on historic properties and summarize the status of consultations under section 106.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the projects. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed projects.
Copies of the completed draft EIS will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
In addition to involvement in the EIS scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceedings. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the User's Guide under the “e-filing” link on the Commission's Web site.
Additional information about the projects is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Broad Run Expansion Project (Project) involving construction and operation of facilities by Tennessee Gas Pipeline Company, L.L.C. (Tennessee) in Kanawha County, West Virginia; Madison, Powell, and Boyd Counties, Kentucky; and Davidson County, Tennessee. The Commission will use this EA in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the Project. You can make a difference by providing us with your specific comments or concerns about the Project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EA. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before June 1, 2015.
If you sent comments on this Project to the Commission before the opening of this docket on January 30, 2015, you will need to file these comments in Docket No. CP15-77-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the Project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
Tennessee provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” This fact sheet addresses a number of typically-asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC Web site (
For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (CP15-77-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
Tennessee proposes to build four new compressor stations, and add compression and modify two existing compressor stations to transport up to 200,000 dekatherms per day. Tennessee also proposes to improve efficiency and reduce certain emissions by replacing older existing compression facilities on its system with newer compressor units.
The Project would include construction and operation of the following facilities:
• Two new compressor stations in Kanawha County, West Virginia, to be known as the Tyler Mountain Compressor Station (CS 118A) and the Rocky Fork Compressor Station (CS 119A);
• a new compressor station in Madison County, Kentucky, to be known as the Richmond Compressor Station (CS 875);
• a new compressor station in Davidson County, Tennessee, to be known as the Pinnacle Compressor Station (CS 563); and
• modifications (including abandonment and replacement of certain compression units, system components, and associated facilities) at the existing Clay City Compressor Station in Powell County, Kentucky (CS 106), and the existing Catlettsburg Compressor Station in Boyd County, Kentucky (CS 114).
The general location of the proposed facilities is shown in appendix 1.
Construction of the facilities would disturb about 270 acres of land. Following construction, Tennessee would maintain about 213 acres for permanent operation of the Project; the remaining acreage would be restored and revert to former uses.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation of the proposed Project under these general headings:
• Air quality and noise;
• endangered and threatened species;
• vegetation and wildlife;
• geology and soils;
• land use;
• water resources, fisheries, and wetlands;
• cultural resources;
• public safety; and
• cumulative impacts.
We will also evaluate reasonable alternatives to the proposed Project or portions of the Project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before making our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section, beginning on page 2.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this Project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the applicable State Historic Preservation Offices (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the Project's potential effects on historic properties.
We have already identified several issues that we think deserve attention based on comments that we have received. These include the potential for noise disturbance, impacts on air quality, and impacts on nearby organic farming. As mentioned above, we will consider all comments on the EA before making our recommendations to the Commission. This preliminary list of issues may be changed based on your comments and our analysis.
The environmental mailing list includes: Federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
If we publish and distribute the EA, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the User's Guide under the “e-filing” link on the Commission's Web site.
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
Take notice that on April 30, 2015, pursuant to section 1(4), 1(6), 3(1), 8, 9, 13(1), 15(1), and 16(1) of the Interstate Commerce Act, 49 U.S.C. App. §§ 1(4), 1(6), 3(1), 8, 9, 13(1), 15(1), and 16(1); Rule 206 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (Commission), 18 CFR 385.206; and section 343.2 of the Procedural Rules Applicable to Oil Pipeline Proceedings, 18 CFR 343.2, BP Products North America Inc. (Complainant) filed a formal complaint against Sunoco Pipeline L.P. (Sunoco or Respondent), challenging the justness and reasonableness of: (1) Executed Throughput and Deficiency Agreements with certain shippers; and (2) Sunoco's revisions to its prorationing policy for its pipeline operating between Marysville, Michigan and Toledo, Ohio (Sunoco Pipeline), as more fully explained in the complaint.
The Complainant certifies that copies of the complaint were served on the Respondents.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that, on June 10, 2015, Commission staff will lead a technical conference, pursuant to the Commission's April 16, 2015 Order Instituting Proceeding to Develop Electronic Filing Protocols for Commission Forms,
The technical conference will be held from 10:00 a.m. until 4:00 p.m. (Eastern Time) at the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in the Commission Meeting Room. The conference is open to the public. Pre-registration through the Commission's Web site (
The Commission will post information on the technical conference on the Calendar of Events on the Commission's Web site,
Background material can be found on the Commission's Web site (
The Commission will accept comments following the conference, with a deadline of June 30, 2015.
Conferences held at the Federal Energy Regulatory Commission are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an email to
For more information about this conference, please contact Robert Hudson (Technical Information), Office of Enforcement, at (202) 502-6620 or
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for electronic review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following land acquisition reports:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing comments, motions to intervene, protests, and recommendations is May 29, 2015 (30 days from April 29, 2015). This corrects the earlier parenthetical deadline, which incorrectly stated April 29, 2015. The Commission strongly encourages electronic filing. Please file motions to intervene, protests, comments, or recommendations using the Commission's eFiling system at
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.
Take notice that the following settlement agreement has been filed
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person 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. Erie filed the Settlement Agreement on behalf of itself and the U.S. Fish and Wildlife Service, New York State Department of Environmental Conservation, New York State Council of Trout Unlimited, and the Town of Malone, New York. The purpose of the Settlement Agreement is to resolve among the signatories various issues associated with issuance of a new license for the project, including impoundment fluctuation, base flows, bypassed reach flows, fish protection and passage, recreational enhancements, stream flow and water level monitoring, and invasive species management. Erie requests that the Commission accept and incorporate the agreed-upon items into any new license that may be issued for the project.
l. A copy of the settlement agreement is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
Take notice that on April 29, 2015, pursuant to Rule 207(a)(2) of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.207(a)(2) (2014), Navigator BSG Transportation & Storage, LLC filed a petition for a declaratory order seeking an order approving the overall tariff, rate, and priority service structure for its proposed new crude pipeline system (Project). The Project will transport crude oil from West Texas counties in Permian Basin to points of interconnection with long-haul take away pipelines, as more fully explained in the petition.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Comment Date: 5:00 p.m. Eastern time on May 21, 2015.
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing comments, motions to intervene, protests, and recommendations is May 29, 2015 (30 days from April 29, 2015). This corrects the earlier parenthetical deadline, which incorrectly stated April 29, 2015. The Commission strongly encourages electronic filing. Please file motions to intervene, protests, comments, or recommendations using the Commission's eFiling system at
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.
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. This application is not ready for environmental analysis at this time.
k.
The proposed project would be operated in a run-of-river mode. The proposed project would include: (1) The existing 579-acre impoundment, with a normal pool elevation of 585.60 feet North American Vertical Datum of 1988; (2) the existing 208-foot-long, 35-foot-high fixed crest dam; (3) a new 3.5-foot-high adjustable crest gate attached to the top of the dam that would be used to maintain the water surface elevation of the impoundment during project operations (
l.
m. You may also register online at
n.
o. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Environmental Protection Agency (EPA).
Notice of decision.
The Environmental Protection Agency (“EPA”) is granting the California Air Resources Board's (“CARB”) request for authorization of amendments to its mobile cargo handling equipment at ports and intermodal rail yards regulations (“CHE amendments”). EPA is also confirming that certain CHE amendments are within the scope of prior EPA authorizations. CARB's mobile cargo handling equipment at ports and intermodal rail yard regulations apply to all newly purchased, leased or rented on- and off-road vehicles and equipment, as well as in-use on- and off-road vehicles and equipment, with compression-ignition engines that operate at ports and intermodal rail yards. This decision is issued under the authority of the Clean Air Act (“CAA” or “Act”).
Petitions for review must be filed by July 6, 2015.
EPA has established a docket for this action under Docket ID EPA-HQ-OAR-2014-0060. All documents relied upon in making this decision, including those submitted to EPA by CARB, are contained in the public docket. Publicly available docket materials are available either electronically through
EPA's Office of Transportation and Air Quality (“OTAQ”) maintains a Web page that contains general information on its review of California waiver and authorization requests. Included on that page are links to prior waiver
David Dickinson, Attorney-Advisor, Compliance Division, Office of Transportation and Air Quality, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460. Telephone: (202) 343-9256. Fax: (202) 343-2804. Email:
CARB first adopted its CHE regulation on December 31, 2006. The regulation applied to newly purchased, leased, or rented on- and off-road vehicles and equipment, as well as to in-use on- and off-road vehicles and equipment with compression-ignition (CI) engines that operate at ports and intermodal rail yards.
Section 209(e)(1) of the Act permanently preempts any state, or political subdivision thereof, from adopting or attempting to enforce any standard or other requirement relating to the control of emissions for certain
On July 20, 1994, EPA promulgated a rule interpreting the three criteria set forth in section 209(e)(2)(A) that EPA must consider before granting any California authorization request for nonroad engine or vehicle emission standards.
In order to be consistent with section 209(a), California's nonroad standards and enforcement procedures must not apply to new motor vehicles or new motor vehicle engines. To be consistent with section 209(e)(1), California's nonroad standards and enforcement procedures must not attempt to regulate engine categories that are permanently preempted from state regulation. To determine consistency with section 209(b)(1)(C), EPA typically reviews nonroad authorization requests under the same “consistency” criteria that are applied to motor vehicle waiver requests under section 209(b)(1)(C). That provision provides that the Administrator shall not grant California a motor vehicle waiver if she finds that California “standards and accompanying enforcement procedures are not consistent with section 202(a)” of the Act. Previous decisions granting waivers and authorizations have noted that state standards and enforcement procedures will be found to be inconsistent with section 202(a) if (1) there is inadequate lead time to permit the development of the necessary technology, giving appropriate consideration to the cost of compliance within that time, or (2) the federal and state testing procedures impose inconsistent certification requirements.
In light of the similar language of sections 209(b) and 209(e)(2)(A), EPA has reviewed California's requests for authorization of nonroad vehicle or engine standards under section 209(e)(2)(A) using the same principles that it has historically applied in reviewing requests for waivers of preemption for new motor vehicle or new motor vehicle engine standards under section 209(b).
The law makes it clear that the waiver requests cannot be denied unless the specific findings designated in the statute can properly be made. The issue of whether a proposed California requirement is likely to result in only marginal improvement in California air quality not commensurate with its costs or is otherwise an arguably unwise exercise of regulatory power is not legally pertinent to my decision under section 209, so long as the California requirement is consistent with section 202(a) and is more stringent than applicable Federal requirements in the sense that it may result in some further reduction in air pollution in California.
If California amends regulations that were previously authorized by EPA, California may ask EPA to determine that the amendments are within the scope of the earlier authorization. A within-the-scope determination for such amendments is permissible without a full authorization review if three conditions are met. First, the amended regulations must not undermine California's previous determination that
In previous waiver decisions, EPA has recognized that the intent of Congress in creating a limited review based on the section 209(b)(1) criteria was to ensure that the federal government did not second-guess state policy choices. As the agency explained in one prior waiver decision:
It is worth noting * * * I would feel constrained to approve a California approach to the problem which I might also feel unable to adopt at the federal level in my own capacity as a regulator. The whole approach of the Clean Air Act is to force the development of new types of emission control technology where that is needed by compelling the industry to “catch up” to some degree with newly promulgated standards. Such an approach * * * may be attended with costs, in the shape of reduced product offering, or price or fuel economy penalties, and by risks that a wider number of vehicle classes may not be able to complete their development work in time. Since a balancing of these risks and costs against the potential benefits from reduced emissions is a central policy decision for any regulatory agency under the statutory scheme outlined above, I believe I am required to give very substantial deference to California's judgments on this score.
Similarly, EPA has stated that the text, structure, and history of the California waiver provision clearly indicate both a congressional intent and appropriate EPA practice of leaving the decision on “ambiguous and controversial matters of public policy” to California's judgment.
As the U.S. Court of Appeals for the D.C. Circuit has made clear in
[T]he language of the statute and its legislative history indicate that California's regulations, and California's determinations that they must comply with the statute, when presented to the Administrator are presumed to satisfy the waiver requirements and that the burden of proving otherwise is on whoever attacks them. California must present its regulations and findings at the hearing and thereafter the parties opposing the waiver request bear the burden of persuading the Administrator that the waiver request should be denied.
With regard to the standard of proof, the court in
[. . .]consider all evidence that passes the threshold test of materiality and * * * thereafter assess such material evidence against a standard of proof to determine whether the parties favoring a denial of the waiver have shown that the factual circumstances exist in which Congress intended a denial of the waiver.
With regard to the protectiveness finding, the court upheld the Administrator's position that, to deny a waiver, there must be “clear and compelling evidence” to show that proposed enforcement procedures undermine the protectiveness of California's standards.
With respect to the consistency finding, the court did not articulate a standard of proof applicable to all proceedings, but found that the opponents of the waiver were unable to meet their burden of proof even if the standard were a mere preponderance of the evidence. Although
On May 28, 2014, EPA published a
First, EPA requested comment on the CHE amendments, as follows: (1) Should California's CHE amendments be considered under the within-the-scope analysis, or should they be considered under the full authorization criteria?; (2) If those amendments should be considered as a within-the-scope request, do they meet the criteria for EPA to grant a within-the-scope confirmation?; and (3) If the amendments should not be considered under the within-the-scope analysis, or in the event that EPA determines they are not within the scope of the previous authorization, do they meet the criteria for full authorization?
EPA received one anonymous written comment that opposed “any new Regulation or Rule promulgated by EPA on California State Non Road Engine Pollution Control Standards: Mobile Cargo Handling Equipment at Ports and Intermodal Rail Yards Regulations.”
The CHE amendment package contains six categories of amendments. CARB seeks within-the-scope confirmation for the following amendments: (1) Modification to retrofit requirements; (2) modification of operation practices; (3) allowance of demonstration of emissions equivalency for alternative technology; and (4) modification of compliance requirements. CARB seeks a full authorization to enforce amendments that establish: (1) A new opacity based monitoring program; and (2) new retrofit requirements for engines meeting the Tier 4 Family Emission Limits standards.
California maintains that many of the CHE amendments were enacted to address a variety of implementation issues associated with the initial CHE regulations. CARB asserts that the amendments provide additional compliance flexibilities without sacrificing significant emission reductions.
CARB's amendments to the retrofit requirements allow additional time for fleet owners/operators (fleets) to retrofit equipment for which no verified diesel emission control strategies (VDECS) are available. The retrofit amendments also add safety as a criterion for assessing VDECS availability, allow additional time to request a compliance date extension, and allow an extension of the time for the use of experimental diesel particulate matter emissions control strategies for the purpose of gathering verification data on such strategies.
According to CARB, the amendments that modify the operational practice requirements involve four minor adjustments to the CHE regulations. These include a low-use compliance extension (a two-year extension for equipment that operates less than 200 hours per year), an allowance for cargo handling equipment other than yard trucks (“non-truck CHE”), owned or leased by one party to be transferred to another location under certain limitations, an allowance for fleets to replace engines still under the original equipment manufacturer's warranty with replacement engines that meet the emission standards of the original engine, even when newer engine emission standards are in place for newly produced engines, and a new provision allowing fleets to rent non-compliant equipment in the event that compliant equipment is unavailable due to manufacturer delivery delays.
The third set of amendments that CARB maintains are within the scope of the prior authorization establishes a compliance option that allows fleets to demonstrate emissions equivalency for alternative technology. CARB states that these amendments are designed to encourage introduction of new technologies such as hybrid and electric equipment.
Finally, the fourth set of amendments modifies compliance requirements by establishing a compliance schedule that allows fleets to bring older engines into compliance first if owners and operators choose to do so, and by exempting equipment at rural low-throughput ports.
CARB maintains that the amendments noted above meet all three within-the-scope criteria,
With regard to the first within-the-scope prong, CARB maintains that the stringency of its emission standards is, in the aggregate, at least as protective of public health and welfare as applicable federal standards.
With regard to the second within-the-scope prong (consistency with section 209), CARB maintains that the CHE amendments do not regulate new motor vehicles or motor vehicles engines and so are consistent with section 209(a). Likewise the CHE amendments do not regulate any of the permanently preempted categories of engines or vehicles, and so are consistent with section 209(e)(1). Finally, CARB maintains that the CHE amendments do not cause any technological feasibility issues or cause inconsistency between state and federal test procedures, per section 209(b)(1)(C). CARB maintains that the CHE amendments, as noted, provide additional compliance flexibilities beyond the CHE regulations
Third, California states that no new issues exist, and EPA has received no evidence to the contrary.
Having received no contrary evidence regarding these amendments, we find that California has met the three criteria for a within-the-scope authorization approval, and these amendments are thus confirmed as within the scope of previous EPA authorizations of California's CHE regulations.
As noted above, CARB seeks a full authorization to enforce amendments that establish a new opacity based monitoring program and new retrofit requirements for engines meeting the Tier 4 Family Emission Limits standards.
CARB's CHE amendments establish new in-use opacity standards and require owners/operators to conduct annual opacity monitoring of all CHE more than four years old from the date of its original manufacture to ensure proper operation and maintenance so that engines continue to perform as designed and certified. Retrofitted engines are similarly monitored to ensure that the engines continue to be in compliance with the VDECS executive order issued by CARB. Equipment found to be in excess of opacity standards would be required to receive maintenance and repair before being returned to service.
Under the CHE regulation that EPA previously authorized, engine manufacturers are allowed some flexibility during periods in which emission standards are transitioning from one emission level (tier) to another emission level (tier). This flexibility allows engine manufacturers to certify a certain percentage of engines manufactured, and identified as being part of the more stringent tier, to emission levels that do not meet that more stringent tier. CARB established a family emission limit (FEL) alternate particulate matter (PM) emission standard (Tier 4 Alternate PM standard) that is essentially equivalent to the less stringent Tier 3 PM emission standard. The Tier 4 Alternate PM standard is about ten times higher than the otherwise applicable Tier 4 PM standard. Through inadvertent error by CARB, the CHE regulations allowed for in-use nonroad non-truck CHE to meet the applicable upgrade requirements by meeting the Tier 4 Alternate PM standard rather than the Tier 4 PM standard. CARB's CHE amendments correct this error by requiring fleets that used the FEL-certified engines to retrofit these engines with the highest available (best—Tier 4) VDECS within one year.
With regard to the first full authorization prong at section 209(e)(2)(i) of the Act, CARB maintains that the stringency of its emission standards is, in the aggregate, at least as protective of public health and welfare as applicable federal standards.
With regard to the second authorization criterion, section 209(e)(2)(A)(ii) instructs that EPA cannot grant an authorization if the Agency finds that California “does not need such California standards to meet compelling and extraordinary conditions.” EPA's inquiry under this second criterion (found both in paragraphs 209(b)(1)(B) and 209(e)(2)(A)(ii)) has been to determine whether California needs its own mobile source pollution program (
Section 209(e)(2)(A)(iii) of the Act instructs that EPA cannot grant an authorization if California's standards and enforcement procedures are not consistent with “this section.” As described above, EPA's section 209(e) rule states that the Administrator shall not grant authorization to California if she finds (among other tests) that the “California standards and accompanying enforcement procedures are not consistent with section 209.” EPA has interpreted the requirement to mean that California standards and accompanying enforcement procedures must be consistent with at least section 209(a), section 209(e)(1), and section 209(b)(1)(C), as EPA has interpreted this last subsection in the context of motor vehicle waivers.
Section 209(a) of the Clean Air Act prohibits states or any political subdivisions of states from setting emission standards for new motor vehicles or new motor vehicle engines. Section 209(a) is modified in turn by section 209(b) which allows California to set such standards if other statutory requirements are met. To find a standard to be inconsistent with section 209(a) for purposes of section 209(e)(2)(A)(iii), EPA must find that the standard in question actually regulates new motor vehicles or new motor vehicle engines. In its authorization request, CARB stated that by definition, the CHE amendments do not regulate new motor vehicles or new motor vehicle engines. EPA received no comments to suggest the contrary. Therefore, EPA cannot deny California's request based on the CHE amendments being inconsistent with section 209(a) of the Act.
To be consistent with section 209(e)(1), California's standards or other requirements relating to the control of emissions must not relate to new engines which are used in farm or construction equipment or vehicles and which are smaller than 175 horsepower
CARB maintains that its CHE amendments do not regulate new engines which are used in construction or farm equipment or vehicles below 175 hp, nor do the CHE amendments regulate new locomotives or new engines used in locomotives.
In light of the lack of contrary information in the record, EPA cannot make a finding that CARB's CHE amendments are inconsistent with section 209(e)(1). Therefore, EPA cannot deny CARB's authorization request on this basis.
The requirement that California's standards be consistent with section 209(b)(1)(C) of the Clean Air Act effectively requires consistency with section 202(a) of the Act. To determine this consistency, EPA has applied to California nonroad standards the same test it has used previously for California motor vehicle standards; namely, state standards are inconsistent with section 202(a) of the Act if there is inadequate lead-time to permit the development of technology necessary to meet those requirements, giving appropriate consideration to the cost of compliance within that timeframe. California's accompanying enforcement procedures would also be inconsistent with section 202(a) if federal and California test procedures conflicted. The scope of EPA's review of whether California's action is consistent with section 202(a) is narrow. The determination is limited to whether those opposed to the authorization or waiver have met their burden of establishing that California's standards are technologically infeasible, or that California's test procedures impose requirements inconsistent with the federal test procedures.
CARB states that the smoke opacity test is a quick and inexpensive way to detect if an engine is emitting excessive emissions. CARB maintains that the smoke opacity test is technologically feasible and that compliance with the standards does not require the incorporation of any new technology not already required by existing regulations that have previously received an EPA authorization. CARB also states that the clarification of the Tier 4 FEL emission standards provisions are technologically feasible and were designed to correct an unintentional error and to clarify the original intent of the previously authorized CHE regulations. The CHE amendments only require retrofit to the Tier 4 emission level if appropriate technology is available and require the retrofit be performed within one year. EPA did not receive any comment or evidence to suggest that either of the two amendments for which CARB requested authorization is technologically infeasible.
Consequently, based on the record, EPA is unable to make the finding that the CHE amendments are not technologically feasible with the available lead time giving consideration to the cost of compliance.
EPA received no comments suggesting that CARB's CHE amendments pose any test procedure consistency problem. Therefore, based on the record, EPA cannot find that CARB's testing procedures are inconsistent with section 202(a) and cannot deny CARB's request based on this criterion.
The Administrator has delegated the authority to grant California section 209(e) authorizations to the Assistant Administrator for Air and Radiation. After evaluating CARB's amendments to its CHE regulations described above and CARB's submissions for EPA review, EPA is taking the following actions.
First, EPA is granting a within-the-scope authorization for the CHE amendments that modify the retrofit requirements, modify operational practices, allow demonstration of emissions equivalency for alternative technology, and modify compliance requirements.
Second, EPA is granting a full authorization for the CHE amendments that establish a new opacity based monitoring program and new retrofit requirements for engines meeting the Tier 4 FEL standards.
This decision will affect persons in California and those manufacturers and/or owners/operators nationwide who must comply with California's requirements. In addition, because other states may adopt California's standards for which a section 209(e)(2)(A) authorization has been granted if certain criteria are met, this decision would also affect those states and those persons in such states.
As with past authorization and waiver decisions, this action is not a rule as defined by Executive Order 12866. Therefore, it is exempt from review by the Office of Management and Budget as required for rules and regulations by Executive Order 12866.
In addition, this action is not a rule as defined in the Regulatory Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a supporting regulatory flexibility analysis addressing the impact of this action on small business entities.
Further, the Congressional Review Act, 5 U.S.C. 801,
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's approval of the State of Florida's request to revise/modify certain of its EPA-authorized programs to allow electronic reporting.
EPA's approval is effective May 7, 2015.
Karen Seeh, U.S. Environmental Protection Agency, Office of Environmental Information, Mail Stop 2823T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, (202) 566-1175,
On October 13, 2005, the final Cross-Media Electronic Reporting Rule (CROMERR) was published in the
On February 25, 2015, the Florida Department of Environmental Protection (FDEP) submitted an application titled “National Pollutant Discharge Elimination System e-Reporting Tool (NeT)” for revisions/modifications of its EPA-authorized programs under title 40 CFR. EPA reviewed FDEP's request to revise/modify its EPA-authorized programs and, based on this review, EPA determined that the application met the standards for approval of authorized program revisions/modifications set out in 40 CFR part 3, subpart D. In accordance with 40 CFR 3.1000(d), this notice of EPA's decision to approve Florida's request to revise/modify its following EPA-authorized programs to allow electronic reporting under 40 CFR parts 122, 403, and 503 is being published in the
FDEP was notified of EPA's determination to approve its application with respect to the authorized programs listed above.
Federal Communication Commission.
Notice and request for comments.
The Federal Communications Commission (FCC), as part of its continuing effort to reduce paperwork burden, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995. Comments are requested concerning: (a) Whether the proposed collection(s) 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 estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection(s) of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) ways to further reduce the information burden for 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 Office of Management and Budget (OMB) Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB Control Number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before June 8, 2015.
If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget, via fax at 202-395-5167 or via email at
Nicole Ongele, Office of the Managing Director, FCC at (202) 418-2991.
The Commission is requesting that OMB approve this revised information collection under the emergency processing provisions of the PRA, 5 CFR 1320.5, 1320.8(d), and 1320.13 by July 1, 2015.
The supporting documents for this submission, including revised forms and instructions, may be accessed via this Web site by searching under “OMB 3060-0806”:
Federal Communications Commission.
Notice.
The Federal Communications Commission (FCC) has received Office of Management and Budget (OMB) approval for a revision of a currently approved public information collection pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). An agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number, and no person is required to respond to a collection of information unless it displays a currently valid control number. Comments concerning the accuracy of the burden estimates and any suggestions for reducing the burden should be directed to the person listed in the
Cathy Williams, Office of the Managing Director, at (202) 418-2918, or email:
On July 19, 2005, the Commission released
On January 11, 2007, the Commission released
On August 26, 2013, the Commission issued
On June 20, 2014, the D.C. Circuit vacated the rule prohibiting compensation to providers for minutes of use generated by equipment consumers received from providers for free or for less than $75 ($75 equipment charge rule) and the rule requiring providers to maintain captions off as the default setting for IP CTS equipment.
On August 22, 2014, the Commission issued
This notice pertains to OMB approval of revisions to the information collection requirements as a result of the
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than June 5, 2015.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Home Owners' Loan Act (12 U.S.C. 1461
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the HOLA (12 U.S.C. 1467a(e)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 10(c)(4)(B) of the HOLA (12 U.S.C. 1467a(c)(4)(B)). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than June 5, 2015.
A. Federal Reserve Bank of New York (Ivan Hurwitz, Vice President) 33 Liberty Street, New York, New York 10045-0001:
1.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning Novation/Change of Name Requirements.
Submit comments on or before July 6, 2015.
Submit comments identified by Information Collection 9000-0076, Novation/Change of Name Requirements, by any of the following methods:
•
•
Mr. Curtis E. Glover, Sr., Procurement Analyst, Office of Governmentwide Acquisition Policy, GSA, 202-208-4949 or via email
Federal Acquisition Regulation 42.1203 and 42.1204 provide requirements for contractors to request novation/change of name agreements and supporting documents when a firm performing under Government contracts wishes the Government to recognize (1) a successor in interest to these contracts, or (2) a name change, it must submit certain documentation to the Government.
Public comments are particularly invited on: Whether this collection of information is necessary; whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Office of Government-Wide Policy, General Services Administration (GSA).
Notice of a bulletin.
The purpose of this notice is to inform agencies that FTR Bulletin 15-04, pertaining to the Requirement to Report Agency Payments for Relocation, is now available online at
Mr. Rick Miller, Office of Asset and Transportation Management (MA), Office of Government-wide Policy, GSA, at 202-501-3822 or via email at
Under 5 U.S.C. 5707(c), as implemented in the Federal Travel Regulation, Part 300-70, Subpart A—Requirement To Report Agency Payments for Employee Travel and Relocation, and Part 302-1, Subpart B—Requirement to Report Agency Data for Employee Relocation, the Administrator of General Services is required to collect data on total agency payments for travel, transportation, and relocation expenses every year. This bulletin provides guidance to agencies that spent more than $5 million on travel and transportation payments, including relocation costs, and the requirement procedures to report the data to GSA. Federal Travel Regulation Bulletin 15-04 and all other FTR Bulletins can be found at
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project:
Comments on this notice must be received by July 6, 2015.
Written comments should be submitted to: Doris Lefkowitz, Reports Clearance Officer, AHRQ, by email at
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427-1477, or by email at
In 2004, AHRQ developed and published a measurement tool to assess the culture of patient safety in hospitals (OMB control no. 0935-0115). The
Since 2004, thousands of hospitals within the U.S. and internationally have implemented the survey. In response to requests for comparative data from other hospitals, AHRQ funded the development of a comparative database on the survey in 2006 (OMB control no. 0935-0162). The database is currently compiled every two years, using the latest data provided by participating hospitals (and retaining submitted data for no more than 2 years). Reports describing the findings from analysis of the database are made available on the AHRQ Web site to assist hospitals in comparing their results. The 2014 database contains data from 405,281 hospital provider and staff respondents within 653 participating hospitals. The 2014 User Comparative Database Report presents results by hospital characteristics (
The survey constructed in 2004 remains in use today, more than 10 years after its initial launch. Since the launch of HSOPS, AHRQ has funded development of patient safety culture surveys for other settings. In 2008, surveys were published for outpatient medical offices (OMB control no. 0935-0131) and nursing homes (OMB control no. 0935-0132). In 2012, a survey for community pharmacies (OMB control no. 0935-0183) was released. Surveys for each setting built upon the strengths of HSOPS but improved and updated items where appropriate.
Users of HSOPS have provided feedback over the years suggesting that changes to the instrument would be valuable and welcomed. The comparative database registrants provided feedback about potential changes in 2013, and telephone interviews were conducted with 8 current survey users and vendors to gain an in-depth understanding of their thoughts on the current survey and possible changes. As a result of this feedback, the
(8)
Further details about the specific changes by composite and at the item level can be found on the AHRQ Web site at:
The draft 2.0 version of the instrument has undergone preliminary cognitive testing with 9 hospital physicians and staff members as well as review by a Technical Expert Panel (TEP).
This research has the following goals:
(1) Cognitively test with individual respondents the items in a) the draft HSOPS 2.0 survey and b) HSOPS 2.0 supplemental item set assessing Health IT Patient Safety. Cognitive testing will be conducted in English and Spanish.
(2) Conduct data collection as follows:
a. A combined pilot test and bridge study for the draft HSOPS 2.0 in 40 hospitals and modify the questionnaire as necessary. The pilot test component will entail administering the draft 2.0 version to determine which items to retain. The bridge study component will entail administering the original HSOPS in addition to the draft HSOPS 2.0 version to provide guidance to hospitals in understanding changes in their scores resulting from the new instrument versus changes resulting from true changes in culture.
b. The pilot testing of the supplemental item set will be conducted with the same hospitals and respondents as the pilot test for the draft HSOPS 2.0. These supplemental items will be added to the draft HSOPS 2.0 survey for pilot testing.
(3) Engage a TEP in review of pilot results and finalize the questionnaire and supplemental item set.
(4) Make the final HSOPS 2.0 survey and the supplemental items publicly available.
This work is being conducted by AHRQ through its contractor, Westat, pursuant to AHRQ's statutory authority to conduct and support research on healthcare and on systems for the delivery of such care, including activities with respect to the quality, effectiveness, efficiency, appropriateness and value of healthcare services and with respect to quality measurement and improvement. 42 U.S.C. 299a(a)(1) and (2).
Cognitive interviews—The purpose of these interviews is to understand the cognitive processes respondents engage in when answering each item on the survey, which will aid in refining the survey instrument. These interviews will be conducted with a mix of hospital personnel, including physicians, nurses, and other types of staff (from dietitians to housekeepers).
Draft HSOPS 2.0—Cognitive interviews have already been conducted with 9 respondents to inform development of the current draft HSOPS 2.0. Up to three additional rounds of interviews will be conducted by telephone with a total of 27 respondents (nine respondents each round). The instrument will be translated into Spanish and another round of cognitive interviews will be conducted with nine Spanish-speaking respondents for a total of up to 36 respondents across all four rounds. A cognitive interview guide will be used for all rounds.
Supplemental Items—Up to three rounds of interviews will be conducted by telephone for a total of 27 respondents (nine respondents each round). The supplemental items will be translated into Spanish and another round of cognitive interviews will be conducted with nine Spanish-speaking respondents for a total of up to 36 respondents across all four rounds. A cognitive interview guide will be used for all rounds.
Feedback obtained from the first round of interviews for the draft HSOPS 2.0 and the supplemental items will be used to refine the items. The results of Round 1 testing, along with the proposed revisions, will be reviewed with a TEP prior to commencing with Rounds 2 and/or 3 testing. In total, up to 72 cognitive interviews will be conducted to refine the draft HSOPS 2.0 and supplemental items for pilot testing.
(2) Pilot test and bridge study—There will be one data collection effort which will provide data for the pilot test and the bridge study. The pilot test of the draft HSOPS 2.0 and supplemental items will allow the assessment of the psychometric properties of the items and composites. We will assess the variability, reliability, factor structure and construct validity of the draft HSOPS 2.0 and supplemental items and composites, allowing for their further refinement. The draft HSOPS 2.0 survey and supplemental items will be pilot tested with hospital personnel in approximately 40 hospitals to facilitate multilevel analysis of the data. Approximately 500 providers and staff will be sampled from each hospital, with 250 receiving HSOPS 2.0 with supplemental items for the pilot test and 250 receiving the original HSOPS for the bridge study comparisons. A hospital point of contact will be recruited in each hospital to publicize the survey and assemble a list of sampled providers and staff. Providers and staff will receive notification of the survey and reminders via email and the web-based survey will be fielded entirely online.
The goal of the bridge study will be to provide users with guidance on how their new results will compare with results from the original HSOPS survey. Although users have requested that the HSOPS survey be revised, they are also concerned about their ability to trend results with data from prior years. A similar bridge study was conducted during the 1994 redesign of the Census Bureau's Current Population Survey (CPS). In the CPS bridge study, an additional 12,000 households were added to the survey's monthly rotation schedule between July 1992 and December 1993. The added households received the redesigned version of the instrument. Thus, the CPS fielded both the revised and the original versions of the instrument simultaneously. One of the most important results of the CPS bridge study was the development of metrics that allowed estimates of change that were due to the changes in the instrument. These metrics were used to adjust the estimates produced by the revised CPS instrument. As a result of the study, key labor force metrics such as the unemployment rate could be trended accurately after the instrument's redesign.
We propose to conduct a similarly constructed bridge study in which sampled providers and staff take either the draft HSOPS 2.0 or original versions of HSOPS. As noted above, a split ballot design will be used in which half of sampled providers and staff in each hospital receive the original HSOPS (N=250) and the other half receive the draft HSOPS 2.0 (N=250). This bridge study is designed to produce metrics of change that are attributable to the changed survey instrument. The number of hospitals and sampled providers and staff for this data collection effort was calculated to ensure the statistical power needed to detect relatively small differences in scores (3 percentage points).
(3) TEP feedback—A TEP has been assembled to provide input to guide patient safety culture survey product
(4) Dissemination activities—The final HSOPS 2.0 instrument and supplemental items will be made publicly available through the AHRQ Web site. A report from the bridge study will also be made public as a resource to hospitals making the transition to the new survey. This dissemination activity does not impose a burden on the public and is therefore not included in the burden estimates in Exhibits 1 and 2.
Exhibit 1 shows the estimated annualized burden hours for the participants' time to take part in this research. Cognitive interviews for the draft HSOPS 2.0 will be conducted with 36 individuals and will take about one hour and 30 minutes to complete. Cognitive interviews for the supplemental items will be conducted with 36 individuals and take about one hour to complete. We will recruit 40 hospitals for the pilot test and bridge study, sampling approximately 500 staff members in each (250 taking the original survey and 250 taking the HSOPS 2.0 and supplemental item set). Because we require such a large sample within each hospital, we will target only hospitals with 49 or more beds. For hospitals with fewer than 500 providers and staff, we will conduct a census in the hospital (assuming on average 375 providers and staff in these hospitals this will yield a total of 18,375 sample members assuming all 40 hospitals participate. Assuming a response rate of 50 percent, this will yield a total of 9,188 completed questionnaires. The total annualized burden is estimated to be 2,387 hours.
Exhibit 2 shows the estimated annualized cost burden associated with the participants' time to take part in this research. The total cost burden is estimated to be $83,533.26.
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ health care research and health care information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Agency for Healthcare Research and Quality (AHRQ), HHS.
Notice of request for nominations for public members.
42 U.S.C. 299c establishes a National Advisory Council for Healthcare Research and Quality (the Council). The Council is to advise the Secretary of HHS (Secretary) and the
Seven current members' terms will expire in November 2015. To fill these positions, we are seeking individuals who are distinguished in: (1) The conduct of research, demonstration projects, and evaluations with respect to health care; (2) the fields of health care quality research or health care improvement; (3) the practice of medicine; (4) other health professions; (5) representing the private health care sector (including health plans, providers, and purchasers) or administrators of health care delivery systems; (6) the fields of health care economics, information systems, law, ethics, business, or public policy; and, (7) representing the interests of patients and consumers of health care. 42 U.S.C. 299c(c)(2). Individuals are particularly sought with experience and success in activities specified in the summary above.
Nominations should be received on or before 60 days after date of publication.
Nominations should be sent to Ms. Karen Brooks, AHRQ, 540 Gaither Road, Room 3006, Rockville, Maryland 20850. Nominations may also be emailed to
Jaime Zimmerman, AHRQ, at (301) 427-1456.
42 U.S.C. 299c provides that the Secretary shall appoint to the National Advisory Council for Healthcare Research and Quality twenty one appropriately qualified individuals. At least seventeen members shall be representatives of the public and at least one member shall be a specialist in the rural aspects of one or more of the professions or fields listed in the above summary. In addition, the Secretary designates, as ex officio members, representatives from other Federal agencies, principally agencies that conduct or support health care research, as well as Federal officials the Secretary may consider appropriate. 42 U.S.C. 299c(c)(3). The Council meets in the Washington, DC, metropolitan area, generally in Rockville, Maryland, approximately three times a year to provide broad guidance to the Secretary and AHRQ's Director on the direction of and programs undertaken by AHRQ.
Seven individuals will be selected by the Secretary to serve on the Council beginning with the meeting in the spring of 2016. Members generally serve 3-year terms. Appointments are staggered to permit an orderly rotation of membership.
Interested persons may nominate one or more qualified persons for membership on the Council. Self-nominations are accepted. Nominations shall include: (1) A copy of the nominee's resume or curriculum vitae; and (2) a statement that the nominee is willing to serve as a member of the Council. Selected candidates will be asked to provide detailed information concerning their financial interests, consultant positions and research grants and contracts, to permit evaluation of possible sources of conflict of interest. Please note that once a candidate is nominated, AHRQ may consider that nomination for future positions on the Council. Federally registered lobbyists are not permitted to serve on this advisory board pursuant to the Presidential Memorandum entitled “Lobbyists on Agency Boards and Commissions” dated June 10, 2010, and the Office of Management and Budget's “Final Guidance on Appointment of Lobbyists to Federal Boards and Commissions,” 76 FR 61756 (October 5, 2011).
The Department seeks a broad geographic representation. In addition, AHRQ conducts and supports research concerning priority populations, which include: low-income groups; minority groups; women; children; the elderly; and individuals with special health care needs, including individuals with disabilities and individuals who need chronic care or end-of-life health care. See 42 U.S.C. 299(c). Nominations of persons with expertise in health care for these priority populations are encouraged.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed changes to the currently approved information collection project:
This proposed information collection was previously published in the
Comments on this notice must be received by June 8, 2015.
Written comments should be submitted to: AHRQ's OMB Desk Officer by fax at (202) 395-6974 (attention: AHRQ's desk officer) or by email at
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427-1477, or by email at
Employer-sponsored health insurance is the source of coverage for 78 million current and former workers, plus many of their family members, and is a cornerstone of the U.S. health care system. The Medical Expenditure Panel Survey—Insurance Component (MEPS-IC) measures on an annual basis the extent, cost, and coverage of employer-sponsored health insurance. These statistics are produced at the National, State, and sub-State (metropolitan area) level for private industry. Statistics are also produced for State and local governments. The MEPS-IC was last approved by OMB on November 21, 2013 and will expire on November 30, 2016. The OMB control number for the MEPS-IC is 0935-0110. All of the supporting documents for the current MEPS-IC can be downloaded from OMB's Web site at
In order to ensure that the MEPS-IC is able to capture important changes in the employer-sponsored health insurance market due to the implementation of the Patient Protection and Affordable Care Act (ACA), AHRQ will field a longitudinal survey in 2015 to include a sample of 5,000 small private sector employers that responded to the 2014 MEPS-IC. The OMB clearance that was approved on November 21, 2013 included the 2014 longitudinal survey, a survey of 3,000 respondents to the 2013 MEPS-IC, but did not include the 2015 longitudinal survey. This submission is for the 2015 longitudinal survey only; there are no other changes.
This research has the following goals:
(1) Provide data for Federal policymakers evaluating the effects of National and State health care reforms.
(2) Provide descriptive data on the current employer-sponsored health insurance system and data for modeling the differential impacts of proposed health policy initiatives.
(3) Supply critical State and National estimates of health insurance spending for the National Health Accounts and Gross Domestic Product.
(4) Support evaluation of the impact on health insurance offered by small employers due to the implementation of Small Business Health Options Program (SHOP) exchanges under the ACA, through the addition of a longitudinal component to the sample.
The MEPS-IC is conducted pursuant to AHRQ's statutory authority to conduct surveys to collect data on the cost, use and quality of health care, including the types and costs of private insurance. 42 U.S.C. 299b-2(a).
To achieve the goals of this project for both private sector and state and local government employers, the following data collections will be implemented:
(1) Prescreener Questionnaire—The purpose of the Prescreener Questionnaire, which is collected via telephone, varies depending on the insurance status of the establishment contacted. (Establishment is defined as a single, physical location in the private sector and a governmental unit in state and local governments.) For establishments that do not offer health insurance to their employees, the prescreener is used to collect basic information such as number of employees via a phone call. For establishments that do offer health insurance, the prescreener is used to collect contact names and address information is that are used to mail a written establishment and plan questionnaires. Obtaining this contact information helps ensure that the questionnaires are directed to the person best equipped to complete them.
(2) Establishment Questionnaire—The purpose of the mailed Establishment Questionnaire is to obtain general information from employers who provide health insurance to their employees. The Questionnaire collects such information as total active enrollment in health insurance, other employee benefits offered, demographic characteristics of employees, and retiree health insurance.
(3) Plan Questionnaire—The purpose of the mailed Plan Questionnaire is to collect plan-specific information on each plan (up to four) offered by establishments that provide health insurance to their employees. This questionnaire asks about total premiums, employer and employee contributions to the premium, and plan enrollment for each type of coverage offered—single, employee-plus-one, and family—within a plan. It also asks for information on deductibles, copays, and other plan characteristics.
(4) Longitudinal Sample (LS)—For 2015, an additional sample of small employers (those with 100 or fewer employees) will be included in the collection. The LS will consist of 5,000 small, private-sector employers who responded to the 2014 MEPS-IC regular survey. These employers will be surveyed again in 2015—using the same collection methods as the regular survey—in order to track changes in their health insurance offerings, characteristics, and costs.
The primary objective of the MEPS-IC is to collect information on employer-sponsored health insurance. Such information is needed in order to provide the tools for Federal, State, and academic researchers to evaluate current and proposed health policies and to support the production of important statistical measures for other Federal agencies.
Exhibit 1 shows the estimated annualized burden hours for the respondent's time to provide the requested data for the 2015 longitudinal survey. The Prescreener questionnaire will be completed by 4,300 respondents and takes about 5
Exhibit 2 shows the estimated annualized cost burden associated with the respondents' time to participate in this data collection. The annualized cost burden is estimated to be $52,709.
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) whether the proposed collection of information is necessary for the proper performance of AHRQ health care research and information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice announces a public meeting to receive comments and recommendations (including accompanying data on which recommendations are based) from the public on the appropriate basis for establishing payment amounts for new or substantially revised Healthcare Common Procedure Coding System (HCPCS) codes being considered for Medicare payment under the clinical laboratory fee schedule (CLFS) for calendar year (CY) 2016. This meeting also provides a forum for those who submitted certain reconsideration requests regarding final determinations made last year on new test codes and for the public to provide comment on the requests.
The public meeting will be held in the main auditorium of the Centers for Medicare & Medicaid Services (CMS), Central Building, 7500 Security Boulevard, Baltimore, Maryland 21244-1850.
Glenn McGuirk, (410) 786-5723.
Section 531(b) of the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (BIPA) (Pub. L. 106-554) requires the Secretary of the Department of Health and Human Services (the Secretary) to establish procedures for coding and payment determinations for new clinical diagnostic laboratory tests under Part B of title XVIII of the Social Security Act (the Act) that permit public consultation in a manner consistent with the procedures established for implementing coding modifications for International Classification of Diseases (ICD-9-CM). The procedures and public meeting announced in this notice for new tests are in accordance with the procedures published on November 23, 2001 in the
Section 942(b) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108-173) added section 1833(h)(8) of the Act. Section 1833(h)(8)(A) of the Act requires the Secretary to establish by regulation procedures for determining the basis for, and amount of, payment for any clinical diagnostic laboratory test with respect to which a new or substantially revised Healthcare Common Procedure Coding System (HCPCS) code is assigned on or after January 1, 2005 (hereinafter referred to as “new tests”). A code is considered to be substantially revised if there is a substantive change to the definition of the test or procedure to which the code applies (such as, a new analyte or a new methodology for measuring an existing analyte-specific test). (See section 1833(h)(8)(E)(ii) of the Act).
Section 1833(h)(8)(B) of the Act sets forth the process for determining the basis for, and the amount of, payment for new tests. Pertinent to this notice, section 1833(h)(8)(B)(i) and (ii) of the Act requires the Secretary to make available to the public a list that includes any such test for which establishment of a payment amount is being considered for a year and, on the same day that the list is made available, cause to have published in the
Two bases of payment are used to establish payment amounts for new tests. The first basis called “crosswalking,” is used when a new test is determined to be comparable to an existing test code, multiple existing test codes, or a portion of an existing test code. The new test code is assigned the local fee schedule amounts and the national limitation amount of the existing test. Payment for the new test is made at the lesser of the local fee schedule amount or the national limitation amount. (See 42 CFR 414.508(a).)
The second basis called “gapfilling,” is used when no comparable existing test is available. When using this method, instructions are provided to each Part A and Part B Medicare Administrative Contractor (MAC) to determine a payment amount for its Part B geographic areas for use in the first year. The contractor-specific amounts are established for the new test code using the following sources of information, if available: Charges for the test and routine discounts to charges; resources required to perform the test; payment amounts determined by other payers; and charges, payment amounts, and resources required for other tests that may be comparable or otherwise relevant. (See 42 CFR 414.508(b) and § 414.509 for more information regarding the gapfilling process.)
Under section 1833(h)(8)(B)(iv) of the Act, the Secretary, taking into account the comments and recommendations (and accompanying data) received at the public meeting, develops and makes available to the public a list of proposed determinations with respect to the appropriate basis for establishing a payment amount for each code, an explanation of the reasons for each determination, the data on which the determinations are based, and a request for public written comments on the proposed determinations. Under section 1833(h)(8)(B)(v) of the Act, taking into account the comments received during the public comment period, the Secretary develops and makes available to the public a list of final determinations of final payment amounts for new test codes along with the rationale for each determination, the data on which the determinations are based, and responses to comments and suggestions received from the public.
After the final determinations have been posted on our Web site, the public may request reconsideration of the basis and amount of payment for a new test as set forth in § 414.509. Pertinent to this notice, those requesting that CMS reconsider the basis for payment or, for crosswalking, reconsider the payment amount as set forth in § 414.509(a) and (b)(1) may present their reconsideration requests at the following year's public meeting provided that the requestor made the request to present at the public meeting in the written reconsideration request. For purposes of this notice, we refer to these codes as the “reconsidered codes.” The public may comment on the reconsideration requests. (See the November 27, 2007 CY 2008 Physician Fee Schedule final rule with comment period (72 FR 66275 through 66280) for more information on these procedures.)
We are following our usual process, including an annual public meeting to determine the appropriate basis and payment amount for new and reconsidered test codes under the CLFS for CY 2016.
This meeting is open to the public. The on-site check-in for visitors will be held from 8:30 a.m. to 9:00 a.m., followed by opening remarks. Registered persons from the public may discuss and make recommendations for specific new and reconsidered test codes for the CY 2016 CLFS.
Because of time constraints, presentations must be brief, lasting no longer than 10 minutes, and must be accompanied by three written copies. In addition, CMS recommends that presenters make copies available for approximately 50 meeting participants, since CMS will not be providing additional copies. Written presentations must be electronically submitted to CMS on or before July 2, 2015. Presentation slots will be assigned on a first-come, first-served basis. In the event that there is not enough time for presentations by everyone who is interested in presenting, CMS will gladly accept written presentations from those who were unable to present due to time constraints. Presentations should be sent via email to Glenn McGuirk, at
• Reconsidered or new test code(s) and descriptor.
• Test purpose and method.
• Costs.
• Charges.
• A recommendation with rationale for one of the two bases (crosswalking or gapfilling) for determining payment for new tests, or a recommendation with rationale for changing the basis or payment amount, as applicable, for reconsidered tests.
Additionally, the presenters should provide the data on which their recommendations are based. Written presentations from the public meeting will be available upon request, via email, to Glenn McGuirk at
Taking into account the comments and recommendations (and accompanying data) received at the public meeting, we intend to post our proposed determinations with respect to the appropriate basis for establishing a payment amount for each new test code and our preliminary determinations with respect to the reconsidered codes along with an explanation of the reasons for each determination, the data on which the determinations are based, and a request for public written comments on these determinations on the CMS Web site by early September 2015. This Web site can be accessed at
The Division of Ambulatory Services in the CMS Center for Medicare is coordinating the public meeting registration. Beginning June 8, 2015, registration may be completed on-line at the following Web address:
• Name.
• Company name.
• Address.
• Telephone numbers.
• Email addresses.
When registering, individuals who want to make a presentation must also specify for which new test codes they will be presenting comments. A confirmation will be sent upon receipt of the registration. Individuals must register by the date specified in the
The meeting will be held in a Federal government building; therefore, Federal security measures are applicable. In planning your arrival time, we recommend allowing additional time to clear security. It is suggested that you arrive at the CMS facility between 8:15 a.m. and 8:30 a.m., so that you will be able to arrive promptly at the meeting by 9:00 a.m. Individuals who are not registered in advance will not be permitted to enter the building and will be unable to attend the meeting. The public may not enter the building earlier than 8:15 a.m. (45 minutes before the convening of the meeting).
Security measures include the following:
• Presentation of government-issued photographic identification to the Federal Protective Service or Guard Service personnel. Persons without proper identification may be denied access to the building.
• Interior and exterior inspection of vehicles (this includes engine and trunk inspection) at the entrance to the grounds. Parking permits and instructions will be issued after the vehicle inspection.
• Passing through a metal detector and inspection of items brought into the building. We note that all items brought to CMS, whether personal or for the purpose of demonstration or to support a demonstration, are subject to inspection. We cannot assume responsibility for coordinating the receipt, transfer, transport, storage, set-up, safety, or timely arrival of any personal belongings or items used for demonstration or to support a demonstration.
Individuals attending the meeting who are hearing or visually impaired and have special requirements, or a condition that requires special assistance, should provide that information upon registering for the meeting. The deadline for registration is listed in the
Consistent with the recent reauthorization of the CCDBG statute, ACF requests extension of the ACF-801 including a number of changes and clarifications to the reporting requirements and instructions as set forth below.
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Respondents: States, the District of Columbia, and Territories including Puerto Rico, Guam, the Virgin Islands, American Samoa, and the Northern Mariana Islands.
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Consistent with the recent reauthorization of the CCDBG statute, ACF requests extension and revision of the ACF-800 including a number of changes and clarifications to the reporting requirements and instructions. Most notably, section 658K(a)(2)(F) of the CCDBG Act now requires States to report the number of fatalities occurring among children while in the care and facility of child care providers serving CCDF children.
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for the ISTENT TRABECULAR MICRO-BYPASS STENT and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that medical device.
Submit electronic comments to
Beverly Friedman, Office of Management, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Campus, Rm. 3180, Silver Spring, MD 20993, 301-796-7900.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For medical devices, the testing phase begins with a clinical investigation of the device and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the device and continues until permission to market the device is granted. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a medical device will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(3)(B).
FDA has approved for marketing the medical device ISTENT TRABECULAR MICRO-BYPASS STENT. ISTENT TRABECULAR MICRO-BYPASS STENT is indicated for use in conjunction with cataract surgery for the reduction of intraocular pressure in adult patients with mild to moderate open-angle glaucoma currently treated with ocular hypotensive medication. Subsequent to this approval, the USPTO received a patent term restoration application for the ISTENT TRABECULAR MICRO-BYPASS STENT (U.S. Patent No. 6,626,858) from Glaukos Corporation, and the USPTO requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated January 30, 2014, FDA advised the USPTO that this medical device had undergone a regulatory review period and that the approval of the ISTENT TRABECULAR MICRO-BYPASS STENT represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for the ISTENT TRABECULAR MICRO-BYPASS STENT is 2,820 days. Of this time, 1,535 days occurred during the testing phase of the regulatory review period, while 1,285 days occurred during the approval phase. These periods of time were derived from the following dates:
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This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 5 years of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Interested persons may submit to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or we) is announcing the availability of a draft guidance for industry on the implementation of the mandatory food recall provisions of the FDA Food Safety Modernization Act (FSMA). The guidance is in the form of Questions and Answers and provides answers to common questions that might arise about the mandatory recall provisions and FDA's plans for their implementation.
Although you may comment on any guidance at any time, to ensure that the Agency considers your comments on this draft guidance before it completes a final version of the guidance, submit electronic or written comments on the draft guidance by July 6, 2015.
Submit written requests for single copies of the guidance to the Outreach and Information Center (HFS-009), Center for Food Safety and Applied Nutrition (HFS-317), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740. Send two self-addressed adhesive labels to assist that office in processing your request. See the
Submit electronic comments on the guidance to
Cecilia M. Wolyniak, Food and Drug Administration, WO32 Rm. 4352 HFC-210, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-8209.
FDA's mandatory food recall authority went into effect when FSMA was enacted on January 4, 2011. Section 423 of the Federal Food, Drug and Cosmetic Act (FD&C Act), as added by section 206 of FSMA, gives FDA the authority to order a responsible party to recall an article of food where FDA determines that there is a reasonable probability that the article of food (other than infant formula) is adulterated under section 402 of the FD&C Act [21 U.S.C. 342] or misbranded under section 403(w) of the FD&C Act [21 U.S.C. 343(w)] and that the use of or exposure to such article will cause serious adverse health consequences or death to humans or animals (SAHCODHA).
FDA is announcing the availability of a draft guidance for industry entitled “Questions and Answers Regarding Mandatory Food Recalls; Draft Guidance for Industry.” The draft guidance provides answers to common questions that might arise about the mandatory recall provisions and FDA's plans for their implementation.
This guidance is being issued consistent with our good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent our current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
This guidance does not refer to any information collection provisions found in FDA regulations. Collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). We conclude that the Draft Guidance for Industry: Questions and Answers Regarding Mandatory Food Recalls is not subject to Paperwork Reduction Act of 1995.
Interested persons may submit either written comments regarding the guidance to the Division of Dockets Management (see
Persons with access to the Internet may obtain the guidance at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by June 8, 2015.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or emailed to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
The Administrative Procedures Act (5 U.S.C. 553(e)) provides that every Agency shall give an interested person the right to petition for issuance, amendment, or repeal of a rule. Section 10.30 (21 CFR 10.30) sets forth the format and procedures by which an interested person may submit to FDA, in accordance with § 10.20 (21 CFR 10.20) (Submission of documents to Division of Dockets Management), a citizen petition requesting the Commissioner to issue, amend, or revoke a regulation or order, or to take or refrain from taking any other form of administrative action.
The Commissioner may grant or deny such a petition, in whole or in part, and may grant such other relief or take other action as the petition warrants. Respondents are individuals or households, State or local governments, and not-for-profit institutions or groups.
Section 10.33 (21 CFR 10.33), issued under section 701(a) of the Federal, Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 371(a)), sets forth the format and procedures by which an interested person may request reconsideration of part or all of a decision of the Commissioner on a petition submitted under 21 CFR 10.25 (Initiation of administrative proceedings). A petition for reconsideration must contain a full statement in a well-organized format of the factual and legal grounds upon which the petition relies. The grounds must demonstrate that relevant information and views contained in the administrative record were not previously or not adequately considered by the Commissioner. The respondent must submit a petition no later than 30 days after the decision involved. However, the Commissioner may, for good cause, permit a petition to be filed after 30 days. An interested person who wishes to rely on information or views not included in the administrative record shall submit them with a new petition to modify the decision. FDA uses the information provided in the request to determine whether to grant the petition for reconsideration. Respondents to this collection of information are individuals of households, State or local governments, not-for-profit institutions, and businesses or other for-profit institutions who are requesting from the Commissioner of FDA a reconsideration of a matter.
Section 10.35 (21 CFR 10.35), issued under section 701(a) of the FD&C Act, sets forth the format and procedures by which an interested person may request, in accordance with § 10.20 (Submission of documents to Division of Dockets Management), the Commissioner to stay the effective date of any administrative action.
Such a petition must do the following: (1) Identify the decision involved; (2) state the action requested, including the length of time for which a stay is requested; and (3) include a statement of the factual and legal grounds on which the interested person relies in seeking the stay. FDA uses the information provided in the request to determine whether to grant the petition for stay of action.
Respondents to this information collection are interested persons who choose to file a petition for an administrative stay of action.
Section 10.85 (21 CFR 10.85), issued under section 701(a) of the FD&C Act, sets forth the format and procedures by which an interested person may request, in accordance with § 10.20 (Submission of documents to Division of Dockets Management), an advisory opinion from the Commissioner on a matter of general applicability. An advisory opinion represents the formal position of FDA on a matter of general applicability. When making a request, the petitioner must provide a concise statement of the issues and questions on which an opinion is requested, and a full statement of the facts and legal points relevant to the request. Respondents to this collection of information are interested persons seeking an advisory opinion from the Commissioner on the Agency's formal position for matters of general applicability.
FDA has developed a method for electronic submission of citizen petitions. The Agency still allows for non-electronic submissions; however, electronic submissions of a citizen petition to a specific electronic docket presents a simpler and more straightforward approach. FDA has created a single docket on
The regulations in 21 CFR 12.22, issued under section 701(e)(2) of the FD&C Act (21 U.S.C. 371(e)(2)), set forth the instructions for filing objections and requests for a hearing on a regulation or order under § 12.20(d) (21 CFR 12.20(d)). Objections and requests must be submitted within the time specified in § 12.20(e). Each objection, for which a hearing has been requested, must be separately numbered and specify the provision of the regulation or the proposed order. In addition, each objection must include a detailed description and analysis of the factual information and any other document, with some exceptions, supporting the objection. Failure to include this information constitutes a waiver of the right to a hearing on that objection. FDA uses the description and analysis to determine whether a hearing request is justified. The description and analysis may be used only for the purpose of determining whether a hearing has been justified under 21 CFR 12.24 and does not limit the evidence that may be presented if a hearing is granted.
Respondents to this information collection are those parties that may be adversely affected by an order or regulation.
Section 12.45 (21 CFR 12.45) issued under section 701 of the FD&C Act (21 U.S.C. 371), sets forth the format and procedures for any interested person to
The presiding officer and other participants will use the collected information in a hearing to identify specific interests to be presented. This preliminary information serves to expedite the prehearing conference and commits participation.
The respondents are individuals or households, State or local governments, not-for-profit institutions and businesses, or other for-profit groups and institutions.
In the
FDA estimates the burden of this collection of information as follows:
The burden estimates for this collection of information are based on Agency records and experience over the past 3 years.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for SYNRIBO and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that human drug product.
Submit electronic comments to
Beverly Friedman, Office of Management, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Campus, Rm. 3180, Silver Spring, MD 20993, 301-796-7900.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA has approved for marketing the human drug product SYNRIBO (omacetaxine mepesuccinate). SYNRIBO is indicated for treatment of adult patients with chronic or accelerated phase chronic myeloid leukemia with resistance and/or intolerance to two or more tyrosine kinase inhibitors. Subsequent to this approval, the USPTO received a patent term restoration application for SYNRIBO (U.S. Patent No. 6,987,103) from Robin, Mahon, Maisonneuve, Maloisel, and Blanchard, and the USPTO requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated January 30, 2014, FDA
FDA has determined that the applicable regulatory review period for SYNRIBO is 4,182 days. Of this time, 3,037 days occurred during the testing phase of the regulatory review period, while 1,145 days occurred during the approval phase. These periods of time were derived from the following dates:
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This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,217 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Interested persons may submit to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for GATTEX and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of applications to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that human drug product.
Submit electronic comments to
Beverly Friedman, Office of Management, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Campus, Rm. 3180, Silver Spring, MD 20993, 301-796-7900.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA has approved for marketing the human drug product GATTEX (teduglutide [rDNA origin]). GATTEX is indicated for treatment of adult patients with Short Bowel Syndrome who are dependent on parenteral support. Subsequent to this approval, the USPTO received patent term restoration applications for GATTEX (U.S. Patent Nos. 5,789,379 and 7,056,886) from NPS Pharmaceuticals, Inc., and the USPTO requested FDA's assistance in determining the patents' eligibility for patent term restoration. In a letter dated March 26, 2014, FDA advised the USPTO that this human drug product had undergone a regulatory review period and that the approval of GATTEX represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for
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This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its applications for patent extension, this applicant seeks 1,388 days or 5 years of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Interested persons may submit to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for COFLEX INTERLAMINAR TECHNOLOGY and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of the U.S. Patents and Trademarks Office (USPTO), Department of Commerce, for the extension of a patent which claims that medical device.
Submit electronic comments to
Beverly Friedman, Office of Management, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Bldg., Rm. 3180, Silver Spring, MD 20993-0002, 301-796-7900.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For medical devices, the testing phase begins with a clinical investigation of the device and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the device and continues until permission to market the device is granted. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a medical device will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(3)(B).
FDA has approved for marketing the medical device COFLEX INTERLAMINAR TECHNOLOGY. COFLEX INTERLAMINAR TECHNOLOGY is indicated for use in one- or two-level lumbar stenosis from L1-L5 in skeletally mature patients with at least moderate impairment in function, who experience relief in flexion from their symptoms of leg/buttocks/groin pain, with or without back pain, and who have undergone at least 6 months of non-operative treatment. Subsequent to this approval, USPTO received a patent term restoration application for COFLEX INTERLAMINAR TECHNOLOGY (U.S. Patent No. 5,645,599) from Paradigm Spine, LLC, and the USPTO requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated December 24, 2013, FDA advised the USPTO that this medical device had undergone a regulatory review period and that the approval of COFLEX INTERLAMINAR TECHNOLOGY represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that the FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for COFLEX INTERLAMINAR TECHNOLOGY is 2,382 days. Of this time, 1,787 days occurred during the testing phase of the regulatory review period, while 595 days occurred during the approval phase. These periods of time were derived from the following dates:
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This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,503 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Interested persons may submit to the Division of Dockets Management (see
Comments and petitions that have not been made publicly available on
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for OVUGEL and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of applications to the Director of U.S. Patents and Trademarks Office (USPTO), Department of Commerce, for the extension of a patent which claims that animal drug product.
Submit electronic comments to
Beverly Friedman, Office of Management, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Bldg., Rm. 3180, Silver Spring, MD 20993-0002, 301-796-7900.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For animal drug products, the testing phase begins on the earlier date when either a major environmental effects test was initiated for the drug or when an exemption under section 512(j) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360b(j)) became effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the animal drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director USPTO may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for an animal drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(4)(B).
FDA has approved for marketing the animal drug product OVUGEL (triptorelin acetate). OVUGEL, an animal drug product, is indicated for the synchronization of time of insemination in weaned sows to facilitate a single fixed-time artificial insemination. Subsequent to this approval, the USPTO received patent term restoration applications for OVUGEL (U.S. Patent Nos. 5,985,320 and RE 42,072) from Penn State Research Foundation and Massachusetts Institute of Technology, and the USPTO requested FDA's assistance in determining the patents' eligibility for patent term restoration. In a letter dated March 25, 2014, FDA advised the Patent and Trademark Office that this animal drug product had undergone a regulatory review period and that the approval of OVUGEL represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that the FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for OVUGEL is 3,692 days. Of this time, 3,644 days occurred during the testing phase of the regulatory review period, while 48 days occurred during the
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This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its applications for patent extension, this applicant seeks 331 or 1,826 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Interested persons may submit to the Division of Dockets Management (see
Comments and petitions that have not been made publicly available on
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for HVAD ROTARY BLOOD PUMP and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that medical device.
Submit electronic comments to
Beverly Friedman, Office of Management, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Campus, Rm. 3180, Silver Spring, MD 20993, 301-796-7900.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For medical devices, the testing phase begins with a clinical investigation of the device and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the device and continues until permission to market the device is granted. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a medical device will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(3)(B).
FDA has approved for marketing the medical device HVAD ROTARY BLOOD PUMP. HVAD ROTARY BLOOD PUMP is indicated for use as a bridge to cardiac transplantation in patients who are at risk of death from refractory end-stage left ventricular heart failure. Subsequent to this approval, the USPTO received a patent term restoration application for HVAD ROTARY BLOOD PUMP (U.S. Patent No. 6,234,772) from HeartWare, Inc., and the USPTO requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated March 18, 2014, FDA advised the USPTO that this medical device had undergone a regulatory review period and that the approval of HVAD ROTARY BLOOD PUMP represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for HVAD ROTARY BLOOD PUMP is 1,667 days. Of this time, 973 days occurred during the testing phase of the regulatory review period, while 694 days occurred during the approval phase. These periods of time were derived from the following dates:
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This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 818 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Interested persons may submit to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled, “Premarket Notification for a New Dietary Ingredient” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
On February 27, 2015, the Agency submitted a proposed collection of information entitled, “Premarket Notification for a New Dietary Ingredient” to OMB for review and clearance under 44 U.S.C. 3507. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has now approved the information collection and has assigned OMB control number 0910-0330. The approval expires on March 31, 2018. A copy of the supporting statement for this information collection is available on the Internet at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for SIGNIFOR and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that human drug product.
Submit electronic comments to
Beverly Friedman, Office of Management, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Campus, Rm. 3180, Silver Spring, MD 20993, 301-796-7900.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts
FDA has approved for marketing the human drug product SIGNIFOR (pasireotide diaspartate). SIGNIFOR is indicated for treatment of adult patients with Cushing's disease for whom pituitary surgery is not an option or has not been curative. Subsequent to this approval, the USPTO received a patent term restoration application for SIGNIFOR (U.S. Patent No. 7,473,761) from Novartis AG, and the USPTO requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated March 26, 2014, FDA advised the USPTO that this human drug product had undergone a regulatory review period and that the approval of SIGNIFOR represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for SIGNIFOR is 3,440 days. Of this time, 3,138 days occurred during the testing phase of the regulatory review period, while 302 days occurred during the approval phase. These periods of time were derived from the following dates:
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This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 503 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Interested persons may submit to the Division of Dockets Management (see
Comments and petitions that have not been made publicly available on
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for OSENI and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that human drug product.
Submit electronic comments to
Beverly Friedman, Office of Management, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Bldg., Rm. 3180, Silver Spring, MD 20993, 301-796-7900.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all
FDA has approved for marketing the human drug product OSENI (alogliptin benzoate and pioglitazone hydrochloride). OSENI is indicated as an adjunct to diet and exercise to improve glycemic control in adults with type 2 diabetes mellitus. Subsequent to this approval, the USPTO received a patent term restoration application for OSENI (U.S. Patent No. 6,329,404) from Takeda Pharmaceutical Company Limited, and the USPTO requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated May 2, 2014, FDA advised the USPTO that this human drug product had undergone a regulatory review period and that the approval of OSENI represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for OSENI is 2,482 days. Of this time, 895 days occurred during the testing phase of the regulatory review period, while 1,587 days occurred during the approval phase. These periods of time were derived from the following dates:
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This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,826 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Interested persons may submit to the Division of Dockets Management (see
Comments and petitions that have not been made publicly available on
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by July 6, 2015.
Submit electronic comments on the collection of information to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
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. “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 provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use
Section 519(a)(1) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 360i(a)(1)) requires every manufacturer or importer to report whenever the manufacturer or importer receives or otherwise becomes aware of information that reasonably suggests that one of its marketed devices may have caused or contributed to a death or serious injury or has malfunctioned and that such device or a similar device marketed by the manufacturer or importer would be likely to cause or contribute to a death or serious injury if the malfunction were to recur.
Section 519(b)(1)(A) of the FD&C Act requires whenever a device user facility receives or otherwise becomes aware of information that reasonably suggests that a device has or may have caused or contributed to the death or serious illness, of a patient of the facility, the facility shall, as soon as practicable but not later than 10 working days after becoming aware of the information, report the information to the Secretary of HHS and, if the identity of the manufacturer is known, to the manufacturer of the device.
Section 519(b)(1)(B) of the FD&C Act requires whenever a device user facility receives or otherwise becomes aware of information that reasonably suggests that a device has or may have caused or contributed to the serious illness of, or serious injury to, a patient of the facility, shall, as soon as practicable but not later than 10 working days after becoming aware of the information, report the information to the manufacturer of the device or to the Secretary of HHS if the identity of the manufacturer is not known.
Complete, accurate, and timely adverse event information is necessary for the identification of emerging device problems. Information from these reports will be used to evaluate risks associated with medical devices which will enable FDA to take appropriate regulatory measures in protection of the public health under section 519 of the FD&C Act. Thus FDA is requesting approval for these information collection requirements which are being implemented under part 803.
Respondents to this collection of information are businesses or other for-profit and nonprofit organizations including user facilities, manufacturers, and importers of medical devices.
Part 803 requires user facilities to report to the device manufacturer and to FDA in case of a death, incidents where a medical device caused or contributed to a death or serious injury. Additionally, user facilities are required to annually submit the number and summary of advents reported during the calendar year using Form FDA 3419. Manufacturers of medical devices are required to report to FDA when they become aware of information indicating that one of their devices may have caused or contributed to death or serious injury or has malfunctioned in such a way, that should the malfunction recur, it would be likely to cause or contribute to a death or serious injury. Device importers report deaths and serious injuries to the manufacturers and FDA. Importers report malfunctions only to the manufacturers, unless they are unknown, then the reports are sent to FDA.
The number of respondents for each CFR section in table 1 is based upon the number of respondents entered into FDA's internal databases. FDA estimates, based on its experience and interaction with the medical device community, that all reporting CFR sections are expected to take 1 hour to complete, with the exception of § 803.19. Section 803.19 is expected to take approximately 3 hours to complete, but is only required for reporting the summarized data quarterly to FDA. By summarizing events, the total time used to report for this section is reduced because the respondents do not submit a full report for each event they report in a quarterly summary report.
The Agency believes that the majority of manufacturers, user facilities, and importers have already established written procedures to document complaints and information to meet the MDR requirements as part of their internal quality control system. There are an estimated 30,000 medical device distributors. Although they do not submit MDR reports, they must maintain records of complaints under § 803.18(d).
The Agency has estimated that on average 220 user facilities, importers, and manufacturers would annually be required to establish new procedures, or revise existing procedures, in order to comply with this provision.
Therefore, FDA estimates the one-time burden to respondents for establishing or revising procedures under § 803.17 to be 2,200 hours (220 respondents × 10 hours). For those entities, a one-time burden of 10 hours is estimated for establishing written MDR procedures. The remaining manufacturers, user facilities, and importers, not required to revise their written procedures to comply with this provision, are excluded from the burden because the recordkeeping activities needed to comply with this provision are considered “usual and customary” under 5 CFR 1320.3(b)(2).
Under § 803.18, 30,000 respondents represent distributors, importers, and other respondents to this information collection. FDA estimates that it should take them approximately 1.5 hours to complete the recordkeeping requirement for this section. Total hours for this section equal 45,000 hours.
Part 803 requires user facilities to report incidents where a medical device caused or contributed a death or serious injury to the device manufacturer and to FDA in the case of a death. Manufacturers of medical devices are required to report to FDA when they become aware of information indicating that one of their devices may have caused or contributed to death or serious injury or has malfunctioned in such a way that, should the malfunction recur, it would be likely to cause or contribute to a death or serious injury. Device importers report deaths and serious injuries to the manufacturers and FDA. Importers report malfunctions only to the manufacturers (see third-party disclosure burden table), unless the manufacturers are unknown, then the reports are sent to FDA.
FDA estimates, based on its experience and interaction with the medical device community, that all reporting CFR sections are expected to take 1 hour to complete with the exception of § 803.19. Section 803.19 is expected to take approximately 3 hours to complete, but is only required to report the summarized data quarterly to FDA. By summarizing events, the total time used to report for this section is reduced because the respondents do not submit a full report for each event they report in a quarterly summary report.
The Agency believes that the majority of manufacturers, user facilities, and importers have already established written procedures to document complaints and information to meet the MDR requirements as part of their internal quality control system. There are an estimated 30,000 medical device distributors. Although they do not submit MDR reports, they must maintain records of complaints under § 803.18(d). We estimate that it will take
The Agency has estimated that on average, 220 user facilities, importers, and manufacturers would annually be required, under § 803.17, to establish new procedures, or revise existing procedures, in order to comply with this provision. We estimate that it will take each respondent 10 hours annually to establish new procedures, or revise existing procedures.
Under §§ 803.40 and 803.42, device importers report deaths and serious injuries to the manufacturers and FDA. Importers report malfunctions only to the manufacturers, unless they are unknown, then the reports are sent to FDA. We estimate that it will take respondents 1 hour annually to report the information.
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of two public advisory committees 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 physical disabilities or special needs. If you require special accommodations due to a disability, please contact Kalyani Bhatt 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 Assistant Secretary for Health, Office of Adolescent Health, HHS.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting that ICR to OMB, OS seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on the ICR must be received on or before July 6, 2015.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the document identifier HHS-OS-0990-0424-60D for reference.
Abstract: The Office of Adolescent Health (OAH), U.S. Department of Health and Human Services (HHS) is requesting approval by OMB on a revised data collection. The Positive Adolescent Futures (PAF) Study will provide information about program design, implementation, and impacts through a rigorous assessment of program impacts and implementation of two programs designed to support expectant and parenting teens. These programs are located in Houston, Texas and throughout the state of California. The revision to this information collection request includes the 12-month follow-up survey instrument related to the impact study. The collected data from this instrument will provide a detailed understanding of the program impacts within the two study sites about one year after youth are enrolled in the study. Plus, have first access to the programming offered by each site. Clearance is requested for three years.
OS specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Heart, Lung, and Blood Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Office of Cybersecurity and Communications, National Protection and Programs Directorate, Department of Homeland Security.
Notice of meeting.
This notice announces a public workshop on June 9, 2015 to discuss Information Sharing and Analysis Organizations, Automated Indicator Sharing, and Analysis, as related to E.O. 13691, “Promoting Private Sector Cybersecurity Information Sharing” of February 13, 2015.
The workshop will be held on June 9, 2015, from 8:00 a.m. to 5:00 p.m. The meeting may conclude before the allotted time if all matters for discussion have been addressed.
The meeting location is the Cambridge Massachusetts Volpe Center—55 Broadway, Cambridge, MA 02142.
If you have questions concerning the meeting, please contact
On February 13, 2015, President Obama signed E.O. 13691 intended to enable and facilitate “private companies, nonprofit organizations, and executive departments and agencies . . . to share information related to cybersecurity risks and incidents and collaborate to respond in as close to real time as possible.” The order addresses two concerns the private sector has raised:
• How can companies share information if they do not fit neatly into the sector-based structure of the existing Information Sharing and Analysis Centers (ISACs)?
• If a group of companies wants to start an information sharing organization, what model should they follow? What are the best practices for such an organization?
ISAOs may allow organizations to robustly participate in DHS information sharing programs even if they do not fit into an existing critical infrastructure sector, seek to collaborate with other companies in different ways (regionally, for example), or lack sufficient resources to share directly with the government. ISAOs may participate in existing DHS cybersecurity information sharing programs and contribute to near-real-time sharing of cyber threat indicators.
For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact
Members of the public may attend this workshop by RSVP only up to the seating capacity of the room. DHS will audio record the Workshop Panels that take place in the VOLPE Center Auditorium and make the audio recording publicly available on the ISAO Web page
We encourage you to participate in this meeting by submitting comments to the ISAO inbox
You may also submit written comments to the docket before or after the meeting using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. All comments and related material submitted after the meeting must either be submitted to the online docket on or before July 8, 2015, or reach the Docket Management Facility by that date.
6 U.S.C. 131-134; 6 CFR. 29; E.O. 13691.
Fish and Wildlife Service, Interior.
Notice of availability of permit applications; request for comments.
We, the U.S. Fish and Wildlife Service (USFWS), invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (Act) prohibits activities with endangered or threatened species unless a Federal permit allows such activity. The Act requires that we invite public comment before issuing these permits.
We must receive any written comments on or before June 8, 2015.
Send written comments by U.S. mail to the Regional Director, Attn: Endangered Species Permits, U.S. Fish and Wildlife Service, Ecological Services, 5600 American Blvd. West, Suite 990, Bloomington, MN 55437-1458; or by electronic mail to
Regional Recovery Permit Coordinator, by telephone at (612) 713-5343.
We invite public comment on the following permit applications for certain activities with endangered species authorized by section 10(a)(1)(A) of the Act (16 U.S.C. 1531
The applicant requests a permit amendment to add species listed or proposed for listing since January 2012, and that occur within the States of Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio and Wisconsin. Proposed activities are for the recovery and enhancement of survival of the species in the wild.
The applicant requests a permit to take Karner blue butterfly (
The applicant requests an amendment to add dwarf wedgemussel (
The applicant requests renewal of their permit and an amendment to add the northern long-eared bat (
The applicant requests a permit to take grotto sculpin (
The applicant requests a permit to take Topeka shiner (
The applicant requests a permit to take Topeka shiner (
The applicant requests permit amendment to take northern long-eared bats (
The applicant requests an amendment to add the northern long-eared bat (
The applicant requests a permit amendment to take the northern long-eared bat (
The applicant requests a permit amendment to take Indiana bats (
The applicant requests a permit to take Indiana bats (
The applicant requests a permit to take Indiana bats (
The applicant requests a permit amendment to take northern long-eared bat (
The applicant requests a permit amendment to take northern long-eared bat (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit renewal to take clubshell (
The applicant requests a permit renewal to take Karner blue butterflies (
The applicant requests an amendment to add additional activities and personnel to their permit. The applicant also requests a permit renewal. Proposed activities are for the recovery and enhancement of survival of the species in the wild.
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to the existing permit to take northern long-eared bats (
The applicant requests a permit amendment to the existing permit to take northern long-eared bats (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to take northern long-eared bat (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to take northern long-eared bat (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to take Kirtland's warblers (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to take Karner blue butterflies (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit amendment to take northern long-eared bats (
The applicant requests a permit to take the clubshell (
The applicant requests a permit to take northern long-eared bats (
The applicant requests a permit to take Dakota skippers (
The applicant requests a permit to take northern long-eared bats (
The applicant requests a permit to take northern long-eared bats (
The applicant requests a permit to take Dakota skippers (
The applicant requests a permit to take northern long-eared bats (
The applicant requests a permit to take northern long-eared bats (
The applicant requests a permit to take federally listed species (salvage dead threatened and endangered species for scientific museum collections and public education/display) in the States of Illinois, Indiana, Minnesota, and Wisconsin. Proposed activities are for the recovery and enhancement of survival of the species in the wild.
The applicant requests a permit to take Dakota skippers (
The applicant requests a permit to take and/or possess gray wolves (
The applicant requests a permit to take Dakota skippers (
The applicant requests a permit to take the following species in the State of Michigan. Proposed activities are for the recovery and enhancement of survival of the species in the wild.
The applicant requests a permit to take northern long-eared bats (
The applicant requests a permit to take Topeka shiners (
The applicant requests a permit to take fanshell (
The applicant requests a permit to take least terns (
The applicant requests a permit to take northern long-eared bats (
The applicant requests a permit to take northern long-eared bats (
The applicant requests a permit to take northern long-eared bats (
The applicant requests a permit to take northern long-eared bats (
The applicant requests a permit renewal, with amendments, to take northern long-eared bats (
The applicant requests permit renewal and an amendment to add additional activities and personnel. Proposed activities are for the recovery and enhancement of survival of the species in the wild.
The applicant requests an amendment to add the northern long-eared bat (
We seek public review and comments on these permit applications. Please refer to the appropriate permit application number(s) when you submit comments. Comments and materials we receive are available for public inspection, by appointment, during normal business hours at the address shown in the
We provide this notice under section 10(c) of the ESA (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of availability; reopening of comment period.
We, the U.S. Fish and Wildlife Service (Service), are reopening the comment period for an application from the Yamhill Soil and Water Conservation District (SWCD) for an incidental take permit (permit) under the Endangered Species Act of 1973, as amended (ESA). The permit application includes a draft Habitat Conservation Plan (HCP) addressing private land management activities within upland prairie in Yamhill County, Oregon, that may result in the incidental take of the endangered Fender's blue butterfly. The Service also announces the availability of a draft environmental assessment (EA) addressing the proposed HCP and issuance of a permit that was prepared in accordance with the National Environmental Policy Act of 1969, as amended (NEPA). We invite comments from all interested parties on the permit application, including the HCP and the EA. We are reopening the comment period to correct a technical error with the electronic email box associated with the email address provided in our original
To ensure consideration, written comments must be received from interested parties no later than June 8, 2015.
To request further information or submit written comments, please use one of the following methods, and note that your information request or comments are in reference to the Yamhill SWCD HCP.
•
•
•
•
•
Richard Szlemp, U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office (see
On February 23, 2015, we published a
For background and more information on the draft HCP and draft EA, see our February 23, 2015, notice. For information on where to view the documents and how to submit comments, please see the
All comments and materials we receive will become part of the public record associated with this action. Before including your address, phone number, email address, or other personally identifiable information in your comments, you should be aware that your entire comment—including your personally identifiable information—may be made publicly available at any time. While you can ask us in your comment to withhold your personally identifiable information from public review, we cannot guarantee that we will be able to do so. Comments and materials we receive, as well as supporting documentation we use in preparing the EA, will be available for public inspection by appointment, during normal business hours, at our Oregon Fish and Wildlife Office (see
We provide this notice in accordance with the requirements of section 10 of the ESA (16 U.S.C. 1531
Office of the Secretary, Office of Environmental Policy and Compliance, Department of the Interior.
Notice and request for comments.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of Environmental Policy and Compliance, Office of the Secretary, Department of the Interior announces the proposed extension of a public information collection and seeks public comments on the provisions thereof.
Consideration will be given to all comments received by July 6, 2015.
Send your written comments to Shawn Alam, Office of Environmental Policy and Compliance, U.S. Department of the Interior, 1849 C Street NW., MS 2462-MIB, Washington, DC 20240, fax 202-208-6970, or by electronic mail to
To request a copy of the information collection request, any explanatory information and related forms, please use the contact information provided in the
This notice is for renewal of information collection.
The Office of Management and Budget (OMB) regulations at 5 CFR part 1320, which implement the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
On March 31, 2015, the Departments of Agriculture, the Interior, and Commerce published revised interim final rules they originally published in November 2005 at 7CFR part 1, 43 CFR part 45, and 50 CFR part 221 to implement section 241 of the Energy Policy Act of 2005 (EP Act), Public Law 109-58, which the President signed into law on August 8, 2005. Section 241 of the EP Act adds a new section 33 to the Federal Power Act (FPA), 16 U.S.C. 823d, that allows the license applicant or any other party to the license proceeding to propose an alternative to a condition or prescription that one or more of the Departments develop for inclusion in a hydropower license issued by the Federal Energy Regulatory Commission (FERC) under the FPA. This provision requires that the Department of Agriculture, the Department of the Interior, and the Department of Commerce collect the information covered by 1094-0001.
Under FPA section 33, the Secretary of the Department involved must accept the proposed alternative if the Secretary determines, based on substantial evidence provided by a party to the license proceeding or otherwise available to the Secretary, (a) that the alternative condition provides for the adequate protection and utilization of the reservation, or that the alternative prescription will be no less protective than the fishway initially proposed by the Secretary, and (b) that the alternative will either cost significantly less to implement or result in improved operation of the project works for electricity production.
In order to make this determination, the regulations require that all of the following information be collected: (1) A description of the alternative, in an equivalent level of detail to the Department's preliminary condition or prescription; (2) an explanation of how the alternative: (i) If a condition, will provide for the adequate protection and utilization of the reservation; or (ii) if a prescription, will be no less protective than the fishway prescribed by the bureau; (3) an explanation of how the alternative, as compared to the preliminary condition or prescription, will: (i) Cost significantly less to implement; or (ii) result in improved operation of the project works for electricity production; (4) an explanation of how the alternative or revised alternative will affect: (i) Energy supply, distribution, cost, and use; (ii) flood control; (iii) navigation; (iv) water supply; (v) air quality; and (vi) other aspects of environmental quality; and (5) specific citations to any scientific studies, literature, and other documented information relied on to support the proposal.
This notice of proposed renewal of an existing information collection is being published by the Office of Environmental Policy and Compliance, Department of the Interior, on behalf of all three Departments and the data provided below covers anticipated responses (alternative conditions/prescriptions and associated information) for all three Departments.
(1) Title: 7 CFR part 1; 43 CFR part 45; 50 CFR part 221; the Alternatives Process in Hydropower Licensing.
(2)
(3) Description of the need and use of the information: The purpose of this information collection is to provide an opportunity for license parties to propose an alternative condition or prescription to that proposed by the Federal Government for inclusion in the hydropower licensing process.
The Departments invite comments on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the agencies, including whether the information will have practical utility;
(b) The accuracy of the agencies' estimate of the burden of the collection of information and the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways to minimize the burden of the collection of information on respondents, including through the use of appropriate automated, electronic, mechanical, or other collection techniques or other forms of information technology.
“Burden” means the total time, effort, and financial resources expended by
All written comments, with names and addresses, will be available for public inspection. If you wish us to withhold your personal information, you must prominently state at the beginning of your comment what personal information you want us to withhold. We will honor your request to the extent allowable by law. If you wish to view any comments received, you may do so by scheduling an appointment with the Office of Environmental Policy and Compliance by using the contact information in the
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Office of the Secretary, Interior.
Notice of amendment to an existing system of records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, the Department of the Interior is issuing public notice of its intent to amend the Office of the Secretary Privacy Act system of records, “Hearings and Appeals Files—Interior, OS-09”. The amendment will update the system location, categories of records, routine uses of records maintained, policies and practices for storing, retrieving, accessing, retaining and disposing of records, and citations to amended Department of the Interior regulations.
Comments must be received by June 16, 2015. The amendments to the system will be effective June 16, 2015.
Any person interested in commenting on this notice may do so by: submitting comments in writing to Teri Barnett, Departmental Privacy Officer, 1849 C Street NW., Mail Stop 5547 MIB, Washington, DC 20240; hand-delivering comments to Teri Barnett, Departmental Privacy Officer, 1849 C Street NW., Mail Stop 5547 MIB, Washington, DC 20240; or emailing comments to
Director, Office of Hearings and Appeals, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203, or by telephone at 703-235-3810.
The Department of the Interior (DOI), Office of Hearings and Appeals (OHA), maintains the “Hearings and Appeals File—Interior, OS-09,” system of records. The primary purpose of this system is to support the adjudication or other resolution of administrative disputes assigned to OHA. The amendments to the system will include updating the system location, categories of records, routine uses of records maintained, and policies and practices for storing, retrieving, accessing, retaining and disposing of records, as well as updating citations to amended DOI regulations. The categories of records in the system is being updated to delete a reference regarding contract disputes considered and decided by the Interior Board of Contract Appeals, which was replaced by Congress with the Civilian Board of Contract Appeals (Sec. 847, Pub. L. 109-163, 119 Stat. 3391), and to add a reference to hearings in hydropower licensing proceedings (43 CFR part 45). This system notice was last published in the
The list of routine uses of records maintained in the system is being revised in several respects. Routine use (1) is expanded to cover not only parties and their authorized representatives but also intervenors, witnesses, parties' family members, any other persons whose connections to the parties and/or the proceedings could warrant attendance and/or participation at a hearing, and authorized representatives of any of these additional persons. Routine use (1) is also expanded to expressly include service lists as documents that may be disclosed. It is typical for service lists to show, among other things, the name and address of each party or party's representative.
Routine use (2) is added to permit disclosure of case docket lists that provide limited information on pending cases, such as, docket number, case title (which may be an individual's name), and docketed date. Finally, routine use (3) is added to permit disclosure of decisions and orders whose disclosure is not required under the Freedom of Information Act, 5 U.S.C. 552(a)(2).
The amendments to the system will be effective as proposed at the end of the comment period (the comment period will end 40 days after the publication of this notice in the
The Privacy Act of 1974, as amended (5 U.S.C. 552a), embodies fair information practice principles in a statutory framework governing the means by which Federal agencies collect, maintain, use, and disseminate individuals' personal information. The Privacy Act applies to records about individuals that are maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information about an individual is retrieved by the name or by some identifying number, symbol, or other identifying particular assigned to the individual. The Privacy Act defines an individual as a U.S. citizen or lawful permanent resident. As a matter of policy, DOI extends administrative Privacy Act protections to all individuals. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of the DOI by complying with DOI Privacy Act regulations at 43 CFR part 2, subpart K.
The Privacy Act requires each agency to publish in the
In accordance with 5 U.S.C. 552a(r), DOI has provided a report of this system of records to the Office of Management and Budget and to Congress.
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.
Hearings and Appeals Files—Interior, OS-09.
Unclassified.
(1) Director's Office and Appeals Boards, Office of Hearings and Appeals, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203.
(2) Probate Hearings Division, Office of Hearings and Appeals, BIA Building II, 1011 Indian School Road NW., Room 322, Albuquerque, New Mexico 87104.
(3) Departmental Cases Hearings Division, Office of Hearings and Appeals, 351 South West Temple St., Suite 6.300, Salt Lake City, Utah 84101.
Individuals involved or otherwise identified in hearings and appeals proceedings before the Office of the Director, Appeals Boards, and Hearings Divisions of OHA.
Records in this system include information assembled in case files and docket systems pertaining to individuals involved in the categories of hearings and appeals proceedings listed below. The types of records vary from category to category and case to case, but may include correspondence, pleadings, and briefs; administrative record materials, other documentary evidence, and transcripts of testimony; notices, orders, and decisions issued by administrative law judges, administrative judges, and other deciding officials; and associated docket cards and docket system data entries. During the active consideration of a case, records may also include deliberative process materials such as a judge's notes, draft orders or decisions, and comments on such drafts from other judges or staff. Records in the system may contain names, addresses, telephone numbers, family relationship information (including adoption and foster care relationship information), tribal enrollment information, and dates of birth of individuals involved or otherwise identified in hearings and appeals.
Categories of hearings and appeals proceedings covered by OS-09:
(1) Indian probate matters, considered and decided by the Probate Hearings Division, including determination of heirs, approval of wills, allowance of claims, and the purchase of decedents' interests in trust and restricted lands; and appeals in such matters, considered and decided by the Interior Board of Indian Appeals (IBIA).
(2) Heirship determinations under the White Earth Reservation Land Settlement Act of 1985, considered and decided by the Departmental Cases Hearings Division (DCHD); and appeals in such matters, considered and decided by IBIA.
(3) Appeals pertaining to administrative actions of the Bureau of Indian Affairs, considered and decided by IBIA.
(4) Contest proceedings and other hearings relating to the use and disposition of public lands and their resources, considered and decided by the DCHD, including land selections arising under the Alaska Native Claims Settlement Act; appeals in such matters, considered and decided by the Interior Board of Land Appeals (IBLA); and appeals from decisions of the Bureau of Land Management relating to the use and disposition of public lands and their resources, considered and decided by IBLA.
(5) Appeals from decisions of Departmental officials relating to the use and disposition of mineral resources in certain acquired lands of the United States and in the submerged lands of the Outer Continental Shelf, considered and decided by IBLA.
(6) Hearings in appeals relating to surface coal mining and reclamation operations, considered and decided by the DCHD; appeals in such matters, considered and decided by IBLA; and appeals from decisions of the Office of Surface Mining Reclamation and Enforcement relating to surface coal mining and reclamation operations, considered and decided by IBLA.
(7) Hearings related to mandatory conditions and prescriptions proposed for inclusion in hydropower licenses, considered and decided by the DCHD.
(8) Hearings and appeals in various matters considered and decided by the Director or his or her designees, including employee debt collection matters, requests for waiver of claims for erroneous payments, determinations of employee liability for loss or damage to government property, adjustment of rental rates for government quarters, acreage limitations under the Reclamation Reform Act, Relocation Assistance Act claims, enforcement actions under the Indian Gaming Regulatory Act, and Director's review matters under 43 CFR 4.5(b).
(9) Any other hearings or appeals proceedings conducted by OHA under statutes or Departmental regulations providing for a hearing and/or a right to appeal within the Department.
5 U.S.C. 301, 551
The primary purpose of the Hearings and Appeals Files system of records is to support administrative determinations and adjudications assigned to OHA. Final opinions rendered in the adjudication of cases will be disclosed outside DOI as required by law and regulation (5 U.S.C. 552(a)(2), 43 CFR 2.1(g); 2.67(b)). In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, records or information contained in this system may be disclosed outside DOI as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
(1) To parties and their authorized representatives, as well as intervenors, witnesses, parties' family members, any other persons whose connections to the parties and/or the proceedings could warrant attendance and/or participation at a hearing, and authorized representatives of any of these additional persons, upon request or in
(2) To the public of case docket lists that provide limited information on pending cases,
(3) To the public of decisions and orders that are not required to be disclosed under 5 U.S.C. 552(a)(2),
(i) Such disclosure would not cause a clearly unwarranted invasion of personal privacy; and
(ii) Such documents would not otherwise be exempt from disclosure under 5 U.S.C. 552(b).
(4)(a) To any of the following entities or individuals, when the circumstances set forth in paragraph (b) are met:
(i) The U.S. Department of Justice (DOJ);
(ii) A court or an adjudicative or other administrative body;
(iii) A party in litigation before a court or an adjudicative or other administrative body; or
(iv) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(b) When:
(i) One of the following is a party to the proceeding or has an interest in the proceeding:
(A) DOI or any component of DOI;
(B) Any other Federal agency appearing before OHA;
(C) Any DOI employee acting in his or her official capacity;
(D) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(E) The United States, when DOJ determines that DOI is likely to be affected by the proceeding; and
(ii) DOI deems the disclosure to be:
(A) Relevant and necessary to the proceeding; and
(B) Compatible with the purpose for which the records were compiled.
(5) To a congressional office in response to a written inquiry that an individual covered by the system, or the heir of such individual if the covered individual is deceased, has made to the office.
(6) To any criminal, civil, or regulatory law enforcement authority (whether Federal, state, territorial, local, tribal or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
(7) To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
(8) To Federal, state, territorial, local, tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant or other benefit, when the disclosure is compatible with the purpose for which the records were compiled.
(9) To representatives of the National Archives and Records Administration to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
(10) To state, territorial and local governments and tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
(11) To an expert, consultant, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
(12) To appropriate agencies, entities, and persons when:
(a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; and
(b) The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and
(c) The disclosure is made to such agencies, entities and persons who are reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(13) To the Office of Management and Budget during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
(14) To the Department of the Treasury to recover debts owed to the United States.
(15) To agency contractors, grantees, or volunteers for DOI or other Federal Departments who have been engaged to assist the Government in the performance of a contract, grant, cooperative agreement, or other activity related to this system of records and who need to have access to the records in order to perform the activity.
(16) To the news media and the public, with the approval of the Public Affairs Officer in consultation with Counsel and the Senior Agency Official for Privacy, where there exists a legitimate public interest in the disclosure of the information, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy or otherwise violate the FOIA.
Pursuant to 5 U.S.C. 552a(b)(12), disclosures may be made to a consumer reporting agency as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1996 (31 U.S.C. 3701(a)(3)).
Case file records in manual form are maintained in file folders. Electronic records, including those created for the purpose of tracking case files, are maintained on the OHA computer network in user-authenticated, password-protected systems that are compliant with the Federal Information Security Management Act. All records are accessed only by authorized personnel who have a need to access the records in the performance of their official duties.
Both manual and electronic records are retrieved by the name of the appellant, claimant, or other party, or by designated OHA docket number.
The records contained in this system are safeguarded in accordance with 43 CFR 2.226 and other applicable security
Personnel authorized to access systems must complete all Security, Privacy, and Records Management training and sign the DOI Rules of Behavior. A separate Privacy Impact Assessment for the electronic database (the OHA Docket Management System) has been conducted to ensure appropriate controls and safeguards are in place to protect the information within the system.
Records other than Indian trust records are retained and disposed of in accordance with the OHA Records Disposal Schedule, which has been approved by the National Archives and Records Administration (Job No. N1-048-07-4), and the Office of the Secretary Records Disposal Schedule. The disposition is temporary. The disposition schedule varies, but most records are destroyed or deleted 7 years after closure of agency business. Paper records are disposed of by shredding or pulping, and records contained on electronic media are degaussed or erased in accordance with 384 Departmental Manual 1.
Indian trust records are retained in accordance with a schedule, “Office of Hearings and Appeals—Trust Case Files,” that has been approved by the National Archives and Records Administration (Job No. N1-048-10-8). The disposition is permanent.
Director, Office of Hearings and Appeals, U.S. Department of the Interior, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203.
An individual requesting notification of the existence of records on himself or herself should send a signed, written inquiry to the System Manager identified above. The request envelope and letter should both be clearly marked “PRIVACY ACT INQUIRY.” A request for notification must meet the requirements of 43 CFR 2.235.
An individual requesting records on himself or herself should send a signed, written inquiry to the System Manager identified above. The request should describe the records sought as specifically as possible. The request envelope and letter should both be clearly marked “PRIVACY ACT REQUEST FOR ACCESS.” A request for access must meet the requirements of 43 CFR 2.238.
An individual requesting corrections or the removal of material from his or her records should send a signed, written request to the System Manager identified above. A request for corrections or removal must meet the requirements of 43 CFR 2.246.
Records in the system contain information submitted by individuals involved in hearings and appeals, including but not limited to appellants, claimants, intervenors, witnesses, government and Tribal officials, and other persons involved in the proceedings.
None.
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 Pacific Bioscience Laboratories, Inc. on April 30, 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 electric skin care devices, brushes and chargers therefor, and kits containing same. The complaint names as respondents Our Family Jewels, Inc. d/b/a Epipür Skincare of Parker, CO; Accord Media, LLC d/b/a Truth in Aging of New York, NY; Xnovi Electronic Co., Ltd. of China; Michael Todd True Organics LP of Port St. Lucie, FL; MTTO LLC of Port St. Lucie, FL; Shanghai Anzikang Electric Co., Ltd. of China; Nutra-Luxe M.D., LLC of Fort Myers, FL; Beauty Tech, Inc. of Coral Gables, FL; Anex Corporation of Korea; RN Ventures Ltd. of United Kingdom; Korean Beauty Co., Ltd. of Korea; H2Pro Beautylife, Inc. of Placentia, CA; Serious Skin Care, Inc. of Carson City, NV; Home Skinovations Inc. of Canada; Home Skinovations Ltd. of Israel; Wenzhou AI ER Electrical Technology Co., Ltd d/b/a Cnaier of
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. 3067”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given regarding the Recommended Determination (“RD”) on Remedy and Bonding issued in the above-captioned investigation. On April 27, 2015, the presiding administrative law judge issued a Final Initial Determination on Remand. The Commission is soliciting comments on public interest issues raised by the RD issued in the original investigation on August 14, 2009, specifically a limited exclusion order against certain 3G mobile handsets and components thereof manufactured or imported by or on behalf of respondents Nokia Corporation of Espoo, Finland and Nokia Inc. of Irving, Texas. The RD also recommends issuance of a cease and desist order against respondents.
Megan M. Valentine, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708-2301. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server (
Section 337 of the Tariff Act of 1930 provides that if the Commission finds a violation it shall exclude the articles concerned from the United States:
19 U.S.C. 1337(d)(1). A similar provision applies to cease and desist orders. 19 U.S.C. 1337(f)(1).
The Commission is interested in further development of the record on the public interest in these investigations. Accordingly, members of the public are invited to file submissions of no more than five (5) pages, inclusive of attachments, concerning the public interest in light of the administrative law judge's Recommended Determination on Remedy and Bonding issued in this investigation on August 14, 2009. Comments should address whether issuance of a limited exclusion order and cease and desist order in this investigation would affect the public health and welfare in the United States,
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the recommended orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the recommended 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 recommended exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the limited exclusion order and cease and desist orders would impact consumers in the United States.
Written submissions must be filed no later than by close of business on June 3, 2015.
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 investigation number (“Inv. No. 337-TA-613 REMAND”) 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 210.50 of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.50).
By order of the Commission.
United States International Trade Commission.
May 19, 2015 at 11:00 a.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of the final phase of antidumping and countervailing duty investigation Nos. 701-TA-523 and 731-TA-1259 (Final) pursuant to the Tariff Act of 1930 (“the Act”) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of boltless steel shelving units prepackaged for sale from China, provided for in subheadings 9403.10.00 and 9403.20.00 of the Harmonized Tariff Schedule of the United States, preliminarily determined by the Department of Commerce to be subsidized and sold at less-than-fair-value.
Keysha Martinez (202-205-2136), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of this phase of the investigations, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
Notice is hereby given that, on April 14, 2015, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, Conxall Corporation Inc., Chicago, IL; FieldServer Technologies (Div Sierra Monitor Corporation), Milpitas, CA; New Age Micro, Mansfield, MA; Power Electronics S.L., Paterna, SPAIN, UNIPULSE Corporation, Koshigaya City, JAPAN; and Warwick Instruments, London, UNITED KINGDOM, have withdrawn as parties to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and ODVA intends to file additional written notifications disclosing all changes in membership.
On June 21, 1995, ODVA filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on January 20, 2015. A notice was published in the
Notice is hereby given that, on April 2, 2015, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and WITEK intends to file additional written notifications disclosing all changes in membership.
On August 8, 2008, WITEK filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on September 25, 2012. A notice was published in the
Notice is hereby given that, on March 31, 2015, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, National Archives & Records Administration, College Park, MD; San Solutions, Inc., Reno, NV; and Lawrence R. Kaplan (individual member), Menlo Park, CA, have withdrawn as parties to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and Advanced Media Workflow Association, Inc. intends to file additional written notifications disclosing all changes in membership.
On March 28, 2000, Advanced Media Workflow Association, Inc. filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on December 23, 2014. A notice was published in the
On May 1, 2015, the Department of Justice lodged a Stipulation and Proposed Order Amending the Requirements Set Forth in Paragraph 13(c) of the Consent Decree (“Stipulation and Proposed Order”) with the United States District Court for the Southern District of Ohio in the lawsuit entitled
In its February 21, 2001, amended complaint in this action, brought under Sections 106 and 107(a) of the Comprehensive Environmental Response. Compensation, and Liability Act, 42 U.S.C. 9606 and 9607(a), the United States sought: (1) Reimbursement of costs incurred by the United States for response actions at the Skinner Landfill Superfund Site in West Chester, Ohio (“Site”); and (2) performance of response work. On April 3, 2001, the Court entered a Consent Decree that required the Settling Generator/Transporter Defendants to conduct a remedial action at the Site. In particular, Paragraph 13(c) of the Consent Decree required the construction of an upgradient groundwater control system if the Environmental Protection Agency (“EPA”) determined that there would be prolonged contact between groundwater and waste material at the Site. Although monitoring established that such contact existed, EPA has determined that
The publication of this notice opens a period for public comment on the Stipulation and Proposed Order. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
All comments must be submitted no later than thirty (30) days after the publication date of this notice. Comments may be submitted either by email or by mail:
During the public comment period, the Stipulation and Proposed Order may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $1.50 (25 cents per page reproduction cost) payable to the United States Treasury.
Bureau of Justice Statistics, Department of Justice.
30-day notice.
The Department of Justice (DOJ), Office of Justice Programs, Bureau of Justice Statistics, will be submitting 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. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until June 8, 2015.
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 Lauren Glaze, Statistician, Bureau of Justice Statistics, 810 Seventh Street NW., Washington, DC 20531 (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:
(1)
(2)
(3)
(4)
In addition to collecting the survey data, in an effort to minimize burden on facilities and inmates and to conduct future studies, inmates will be asked to provide consent to link their 2015-2016 SPI survey data to their criminal history records and any updates made to those records over the next 10 years. The administrative records will be used to augment the survey data and to conduct prospective recidivism studies of the 2015-2016 SPI sample of inmates who are released from prison within three to five years of completion of the survey. Inmates will also be asked to provide their Social Security number (SSN) to link their survey data to records from the Social Security Administration (SSA). The goal of this effort is to provide more detailed information about the pre-prison earnings and benefits of inmates without taking up more of their time during the interview.
(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., 3E.405B, Washington, DC 20530.
This notice announces a forthcoming meeting of the National Institute of Corrections (NIC) Advisory Board. The meeting will be open to the public.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
6:30 p.m. to 8:30 p.m.: Closed
Site Team and NSF Staff meets to discuss Site Visit materials, review process and charge
8:00 a.m. to 1:00 p.m.: Open
Presentations by Awardee Institution, faculty staff and students, to Site Team and NSF Staff; Discussions, question and answer sessions
1:00 p.m.-8:00 p.m.: Closed
Draft report on education and research activities
8:30 a.m.-Noon: Open
Response presentations by Site Team and NSF Staff Awardee Institution faculty staff; Discussions, question and answer sessions
Noon to 3:00 p.m.: Closed
Complete written site visit report with preliminary recommendations.
Nuclear Regulatory Commission.
Supplemental environmental impact statement; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing a final plant-specific supplement, Supplement 52, to NUREG-1437, “Generic Environmental Impact Statement for License Renewal of Nuclear Plants” (GEIS), regarding the renewal of FirstEnergy Nuclear Operating Company's (FENOC) operating license NPF-3 for an additional 20 years of operation for Davis-Besse Nuclear Power Station, Unit 1 (Davis-Besse).
The final Supplement 52 to the GEIS is available as of May 7, 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:
•
•
•
Elaine Keegan, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 1-800-368-5692, ext. 8517; email:
In accordance with § 51.118 of Title 10 of the
As discussed in Section 9.4 of the final Supplement 52 to the GEIS, the NRC determined 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. This recommendation is based on: (1) The analysis and findings in the GEIS; (2) information provided in the environmental report and other documents submitted by FENOC; (3) consultation with Federal, State, local, and Tribal agencies; (4) the NRC staff's independent environmental review; and (5) consideration of public comments received during the scoping process and on the Draft Supplemental Environmental Impact Statement.
For the Nuclear Regulatory Commission.
Pursuant to delegation by the Commission,
This proceeding involves an application by Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. for a license amendment for the Vermont Yankee Nuclear Power Station, which is located in Vernon, Vermont. In response to a notice filed in the
The Board is comprised of the following administrative judges:
William J. Froehlich, Chairman, Atomic Safety and Licensing Board Panel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
Dr. Michael F. Kennedy, Atomic Safety and Licensing Board Panel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
Dr. Richard E. Wardwell, Atomic Safety and Licensing Board Panel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
All correspondence, documents, and other materials shall be filed in accordance with the NRC E-Filing rule.
Nuclear Regulatory Commission.
Combined license and record of decision; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is providing notice of the issuance of Combined License (COL), NPF-95 to DTE Electric Company (DTE, formerly Detroit Edison Company) and Record of Decision.
Please refer to Docket ID NRC-2008-0566 when contacting the NRC about the availability of information regarding this document. You may access publicly-available information related to this document using any of the following methods:
•
•
Adrian Muñiz, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-4093, email:
Under section 2.106 of Title 10 of the
Accordingly, the COL was issued on May 1, 2015, and is effective immediately.
The NRC has prepared a Final Safety Evaluation Report (FSER) and Final Environmental Impact Statement (FEIS) that document the information reviewed and NRC's conclusion. The Commission has also issued its Memorandum and Order documenting its final decision on the uncontested hearing held on February 4, 2015, which serves as the Record of Decision ROD in this proceeding. The NRC also prepared a document summarizing the ROD to accompany its action on the COL application that incorporates by reference materials contained in the FEIS. In accordance with 10 CFR 2.390 of the NRC's “Rules of Practice,” details with respect to this action, including the FSER FEIS, Summary ROD, and accompanying documentation included in the combined license package, as well as the Commission's hearing decision and ROD, are available online in the ADAMS Public Documents collection at
The ADAMS accession numbers for the documents related to this notice are:
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Interim staff guidance; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing its Japan Lessons-Learned Division Interim Staff Guidance (JLD-ISG), JLD-ISG-2015-01, “Compliance with Phase 2 of Order EA-13-109, Order Modifying Licenses with Regard to Reliable Hardened Containment Vents Capable of Operation under Severe Accident Conditions.” This ISG provides guidance and clarifies the Phase 2 requirements in the order to assist the licensees that have Boiling Water Reactors (BWRs) with Mark I and Mark II Containments in the design and implementation of either a vent path from the containment drywell or a strategy that makes it unlikely that venting would be needed from the drywell before alternate reliable containment heat removal and pressure control is reestablished. This ISG also endorses, with clarifications, the industry guidance contained in Nuclear Energy Institute (NEI) 13-02, “Industry Guidance for Compliance with Order EA-13-109,” Revision 1.
Please refer to Docket ID NRC-2015-0048 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document by using any of the following methods:
•
•
•
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Rajender Auluck, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1025; email:
The NRC developed JLD-ISG-2015-01 to provide guidance and clarification to assist nuclear power reactor licensees with the identification of methods needed to comply with Phase 2 requirements in Order EA-13-109 (ADAMS Accession No. ML13130A067), “Order Modifying Licenses with Regard to Reliable Hardened Containment Vents Capable of Operation under Severe Accident Conditions.” This ISG is not a substitute for the requirements in Order EA-13-109, and compliance with the ISG would not be a requirement.
The accident at the Fukushima Dai-ichi nuclear power station reinforced the importance of reliable operation of containment vents for BWR plants with Mark I and Mark II containments. As part of its response to the lessons learned from the accident, on March 12, 2012, the NRC issued Order EA-12-050 (ADAMS Accession No. ML12056A043) requiring licensees to upgrade or install a reliable hardened containment venting system (HCVS) for Mark I and Mark II containments. While developing the requirements for Order EA-12-050, the NRC acknowledged that questions remained about maintaining containment integrity and limiting the release of radioactive materials if licensees used the venting systems during severe accident conditions.
The NRC staff on November 26, 2012, presented the Commission with options to address these issues in SECY-12-0157, “Consideration of Additional Requirements for Containment Venting Systems for Boiling Water Reactors with Mark I and Mark II Containments” (ADAMS Accession No. ML12325A704). In the staff requirements memorandum (SRM) for SECY-12-0157, dated March 19, 2013 (ADAMS Accession No. ML13078A017), the Commission directed the staff to: (1) Issue a modification to Order EA-12-050 requiring BWR licensees with Mark I and Mark II containments to upgrade or replace the reliable hardened vents required by Order EA-12-050 with a containment venting system designed and installed to remain functional during severe accident conditions, and (2) develop a technical basis and rulemaking for filtering strategies with drywell filtration and severe accident management of BWR Mark I and II containments. The NRC subsequently issued Order EA-13-109 to define requirements and schedules for licensees for BWRs with Mark I and Mark II containments to install severe accident capable containment venting systems.
In recognition of the relative importance of venting capabilities from the wetwell and drywell, a phased approach to implementation is being used to minimize delays in implementing the requirements originally imposed by Order EA-12-050. Phase 1 involves upgrading the venting capabilities from the containment wetwell to provide reliable, severe accident capable hardened vents to assist in preventing core damage and, if necessary, to provide venting capability during severe accident conditions. Phase 2 involves providing additional protection during severe accident conditions through installation of a reliable, severe accident capable drywell vent system or the development of a reliable containment venting strategy that makes it unlikely that a licensee would need to vent from the containment drywell during severe accident conditions. For implementation of Phase 1 order requirements, the NRC issued JLD-ISG-2013-02 on November 14, 2013 (78 FR 70356), which endorsed, with exceptions and clarifications, the
On March 10, 2015, the NRC staff issued a
The focus of this ISG is to provide guidance for implementing Phase 2 requirements of the order. The Phase 2 portion of Order EA-13-109 builds on the Phase 1 activities, and is intended to be consistent with the expected outcome of the development of a regulatory basis for the Containment Protection and Release Reduction (CPRR) rulemaking. Specifically, the industry described a containment venting approach that includes severe accident water addition (SAWA) and severe accident water management (SAWM) strategies that would preserve the use of a wetwell vent path, in addition to providing other benefits. Evaluations performed in support of the CPRR rulemaking confirmed significant benefits to including SAWA as part of a severe accident management strategy. Therefore, SAWA will facilitate implementation of Phase 2 of Order EA-13-109 by establishing the design conditions for a drywell vent and supporting SAWM for licensees choosing to pursue that option as a strategy that makes it unlikely that a licensee would need to vent from the drywell.
On April 23, 2015, NEI submitted NEI 13-02, “Industry Guidance for Compliance with Order EA-13-109,” Rev. 1 (ADAMS Accession No. ML15113B318) to assist nuclear power licensees with the identification of measures needed to comply with the Phase 2 requirements of Order EA-13-109 regarding reliable hardened containment vents capable of operation under severe accident conditions. The NEI document includes guidance for implementing order requirements for both Phase 1 and Phase 2, including the industry's proposed approach to use the SAWA and SAWM strategies to control the water levels in the suppression pool and maintain capabilities to address over-pressure conditions without a severe accident drywell vent. This ISG endorses, with clarifications, the methodologies described in the industry guidance document NEI 13-02, Revision 1.
For the Nuclear Regulatory Commission.
Pursuant to the provisions of section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to modify the Market Maker Trading Permit Fee.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to modify the monthly Trading Permit fees that apply to Market Makers (“MMs”). Specifically, the Exchange proposes to adopt the following fees: (i) $7,000 for MM Assignments in up to 10 option classes or up to 20% of option classes by volume; (ii) $12,000 for MM Assignments in up to 40 option classes or up to 35% of option classes by volume; (iii) $17,000 for MM Assignments in up to 100 option classes or up to 50% of option classes by volume; and (iv) $22,000.00 for MM Assignments in over 100 option classes or over 50% of option classes up to all option classes listed on MIAX.
The Exchange issues Trading Permits that confer the ability to transact on the Exchange.
The Exchange proposes to modify its Trading Permit fees that apply to MMs. Specifically, the Exchange proposes to adopt the following fees: (i) $7,000 for MM Assignments in up to 10 option classes or up to 20% of option classes by volume; (ii) $12,000 for MM Assignments in up to 40 option classes or up to 35% of option classes by volume; (iii) $17,000 for MM Assignments in up to 100 option classes or up to 50% of option classes by volume; and (iv) $22,000.00 for MM Assignments in over 100 option classes or over 50% of option classes by volume up to all option classes listed on MIAX. For the calculation of the monthly Trading Permit Fees that apply to MMs, the number of classes is defined as the greatest number of classes the MM was assigned to quote in on any given day within the calendar month and the class volume percentage is based on the total national average daily volume in classes listed on MIAX in the prior calendar quarter.
MM assignment percentage of national average daily volume = [total volume during the prior calendar quarter in a class in which the MM was assigned]/[total national volume in classes listed on MIAX in the prior calendar quarter]
Members receiving Trading Permits during the month will be assessed Trading Permit Fees according to the above schedule, except that the calculation of the Trading Permit fee for the first month in which the Trading Permit is issued will be pro-rated based on the number of trading days occurring after the date on which the Trading Permit was in effect during that first month divided by the total number of trading days in such month multiplied by the monthly rate.
The purpose of the proposed fees is to incentivize market participants to register as Market Makers on the Exchange, to provide liquidity, and to attract order flow. To the extent that this purpose is achieved, all the Exchange's market participants should benefit from the improved market liquidity. The proposed fee levels and criteria are based upon a business determination of current MM assignments and trading volume. The Exchange believes that the proposed fee rates and criteria provide an objective and flexible framework that will encourage MMs to be assigned and quote in option classes with lower total national average daily volume while also equitably allocating the fees in a reasonable manner amongst MM assignments to account for quoting and trading activity.
The Exchange proposes to implement the Trading Permit fees beginning May 1, 2015.
The Exchange believes that its proposal to amend its fee schedule is consistent with section 6(b) of the Act
The Exchange believes that the proposed Trading Permit fees are reasonable, equitable and not unfairly discriminatory. The proposed Trading Permit fees are reasonable in that they are within the range of comparable fees at other competing options exchanges.
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 believes that the proposal increases both intermarket and intramarket competition by enabling MMs to qualify for lower Trading Permit fees rates on the Exchange in a manner
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities 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 is filing a proposal to amend the MIAX Options Fee Schedule.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Fee Schedule to establish monthly fees for Internal Distributors and External Distributors of MIAX Order Feed
MOR provides real-time information to enable users to keep track of the simple order book for all symbols listed on MIAX.
The Exchange proposes to establish monthly fees to Distributors of the MOR market data product that receive a feed of data either directly from MIAX or indirectly through another entity and then distributes it either internally (within that entity) or externally (outside that entity). The monthly Distributor Fee charged depends on whether the Distributor is an “Internal Distributor”
In addition, the Exchange notes that it is making non-substantive technical changes to the Fee Schedule to consolidate the market data fees in one section and to make corresponding changes to the outline numbering.
The Exchange believes that its proposal to amend its fee schedule is consistent with section 6(b) of the Act
The Exchange believes the proposed fees are a reasonable allocation of its costs and expenses among its Members and other persons using its facilities since it is recovering not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. Access to the Exchange is provided on fair and non-discriminatory terms. The proposed fees for MOR are reasonable since they are in the range of similar fees charged by another exchange.
In adopting Regulation NMS, the Commission granted self-regulatory organizations and broker-dealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data:
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data [sic] when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
By removing “unnecessary regulatory restrictions” on the ability of exchanges to sell their own data, Regulation NMS advanced the goals of the Act and the principles reflected in its legislative history. If the free market should determine whether proprietary data is sold to broker-dealers at all, it follows that the price at which such data is sold should be set by the market as well.
In July, 2010, Congress adopted H.R. 4173, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), which amended section 19 of the Act. Among other things, section 916 of the Dodd-Frank Act amended paragraph (A) of section 19(b)(3) of the Act by inserting the phrase “on any person, whether or not the person is a member of the self-regulatory organization” after “due, fee or other charge imposed by the self-regulatory organization.” As a result, all SRO rule proposals establishing or changing dues, fees or other charges are immediately effective upon filing regardless of whether such dues, fees or other charges are imposed on members of the SRO, non-members, or both. Section 916 further amended paragraph (C) of section 19(b)(3) of the Act to read, in pertinent part, “At any time within the 60-day period beginning on the date of filing of such a proposed rule change in accordance with the provisions of paragraph (1) [of Section 19(b)], the Commission summarily may temporarily suspend the change in the rules of the self-regulatory organization made thereby, if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of this title. If the Commission takes such action, the Commission shall institute proceedings under paragraph (2)(B) [of Section 19(b)] to determine
The Exchange believes that these amendments to section 19 of the Act reflect Congress's intent to allow the Commission to rely upon the forces of competition to ensure that fees for market data are reasonable and equitably allocated. Although section 19(b) had formerly authorized immediate effectiveness for a “due, fee or other charge imposed by the self-regulatory organization,” the Commission adopted a policy and subsequently a rule stating that fees for data and other products available to persons that are not members of the self-regulatory organization must be approved by the Commission after first being published for comment. At the time, the Commission supported the adoption of the policy and the rule by pointing out that unlike members, whose representation in self-regulatory organization governance was mandated by the Act, non-members should be given the opportunity to comment on fees before being required to pay them, and that the Commission should specifically approve all such fees. The Exchange believes that the amendment to section 19 reflects Congress's conclusion that the evolution of self-regulatory organization governance and competitive market structure have rendered the Commission's prior policy on non-member fees obsolete. Specifically, many exchanges have evolved from member-owned, not-for-profit corporations into for-profit, investor-owned corporations (or subsidiaries of investor-owned corporations). Accordingly, exchanges no longer have narrow incentives to manage their affairs for the exclusive benefit of their members, but rather have incentives to maximize the appeal of their products to all customers, whether members or non-members, so as to broaden distribution and grow revenues. Moreover, the Exchange believes that the change also reflects an endorsement of the Commission's determinations that reliance on competitive markets is an appropriate means to ensure equitable and reasonable prices. Simply put, the change reflects a presumption that all fee changes should be permitted to take effect immediately, since the level of all fees are constrained by competitive forces. The Exchange therefore believes that the fees for MOR are properly assessed on non-member Distributors.
The decision of the United States Court of Appeals for the District of Columbia Circuit in
In fact, the legislative history indicates that the Congress intended that the market system ‘evolve through the interplay of competitive forces as unnecessary regulatory restrictions are removed’ and that the SEC wield its regulatory power ‘in those situations where competition may not be sufficient,’ such as in the creation of a ‘consolidated transactional reporting system.’
The court's conclusions about Congressional intent are therefore reinforced by the Dodd-Frank Act amendments, which create a presumption that exchange fees, including market data fees, may take effect immediately, without prior Commission approval, and that the Commission should take action to suspend a fee change and institute a proceeding to determine whether the fee change should be approved or disapproved only where the Commission has concerns that the change may not be consistent with the Act.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Notwithstanding its determination that the Commission may rely upon competition to establish fair and equitably allocated fees for market data, the
There is intense competition between trading platforms that provide transaction execution and routing services and proprietary data products. Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a representative example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platform where the order can be posted, including the execution fees, data quality and price and distribution of its data products. Without the prospect of a taking order seeing and reacting to a posted order on a particular platform, the posting of the order would accomplish little.
Without trade executions, exchange data products cannot exist. Data products are valuable to many end subscribers only insofar as they provide information that end subscribers expect will assist them or their customers in making trading decisions. The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, an exchange's customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A broker-dealer will direct orders to a particular exchange only if the expected revenues from executing trades on the exchange exceed net transaction execution costs and the cost of data that the broker-dealer chooses to buy to support its trading decisions (or those of its customers). The choice of data products is, in turn, a product of the value of the products in making profitable trading decisions. If the cost of the product exceeds its expected value, the broker-dealer will choose not to buy it.
Moreover, as a broker-dealer chooses to direct fewer orders to a particular exchange, the value of the product to the broker-dealer decreases, for two reasons. First, the product will contain less information, because executions of the broker-dealer's orders will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that broker-dealer because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the broker-dealer is directing orders will become correspondingly more valuable.
Thus, a super-competitive increase in the fees charged for either transactions or data has the potential to impair revenues from both products. “No one disputes that competition for order flow is `fierce'.”
Analyzing the cost of market data distribution in isolation from the cost of all of the inputs supporting the creation of market data will inevitably underestimate the cost of the data. Thus, because it is impossible to create data without a fast, technologically robust, and well-regulated execution system, system costs and regulatory costs affect the price of market data. It would be equally misleading, however, to attribute all of the exchange's costs to the market data portion of an exchange's joint product. Rather, all of the exchange's costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an exchange earns reflects the revenues it receives from the joint products and the total costs of the joint products.
Competition among trading platforms can be expected to constrain the aggregate return each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. For example, some platforms may choose to pay rebates to attract orders, charge relatively low prices for market information (or provide information free of charge) and charge relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower rebates (or no rebates) to attract orders, setting relatively high prices for market information, and setting relatively low prices for accessing posted liquidity. In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering. This would be akin to strictly regulating the price that an automobile manufacturer can charge for car sound systems despite the existence of a highly competitive market for cars and the availability of aftermarket alternatives to the manufacturer-supplied system.
The market for market data products is competitive and inherently contestable because there is fierce competition for the inputs necessary to the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. This proprietary data is produced by each individual exchange, as well as other entities, in a vigorously competitive market.
Broker-dealers currently have numerous alternative venues for their order flow, including eleven existing options markets. Each SRO market competes to produce transaction reports via trade executions. Competitive markets for order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products. The large number of SROs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO is currently permitted to produce proprietary data products, and many in addition to MIAX currently do, including NASDAQ, CBOE, ISE, NYSE Amex, and NYSEArca. Additionally, order routers and market data vendors can facilitate single or multiple broker-dealers' production of proprietary data products. The potential sources of proprietary products are virtually limitless.
Market data vendors provide another form of price discipline for proprietary data products because they control the primary means of access to end subscribers. Vendors impose price restraints based upon their business models. For example, vendors such as Bloomberg and Thomson Reuters that assess a surcharge on data they sell may refuse to offer proprietary products that end subscribers will not purchase in sufficient numbers. Internet portals, such as Google, impose a discipline by providing only data that will enable them to attract “eyeballs” that contribute to their advertising revenue. Retail broker-dealers, such as Schwab and Fidelity, offer their customers proprietary data only if it promotes trading and generates sufficient commission revenue. Although the business models may differ, these vendors' pricing discipline is the same: They can simply refuse to purchase any proprietary data product that fails to provide sufficient value. The Exchange and other producers of proprietary data products must understand and respond to these varying business models and pricing disciplines in order to market proprietary data products successfully.
In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid, inexpensive, and profitable. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, BATS Trading and Direct Edge. Regulation NMS, by deregulating the market for proprietary data, has increased the contestability of that market. While broker-dealers have previously published their proprietary data individually, Regulation NMS encourages market data vendors and broker-dealers to produce proprietary products cooperatively in a manner never before possible. Multiple market data vendors already have the capability to aggregate data and disseminate it on a profitable scale, including Bloomberg, and Thomson Reuters.
The Court in
The intensity of competition for proprietary information is significant and the Exchange believes that this proposal itself clearly evidences such competition. The Exchange is offering MOR in order to keep pace with changes in the industry and evolving customer needs. It is entirely optional and is geared towards attracting new Member Applicants and customers. MIAX competitors continue to create new market data products and innovative pricing in this space. The Exchange expects to see firms challenge its pricing on the basis of the Exchange's explicit fees being higher than the zero-priced fees from other competitors such as BATS. In all cases, the Exchange
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The MSRB filed with the Commission the specifications for the selection of examination questions (“selection specifications”) and content outline for the Municipal Advisor Representative Qualification Examination (“Series 50 examination”) (the “proposed rule change”).
The text of the proposed rule change is available on the MSRB's Web site at
In its filing with the Commission, the MSRB 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 MSRB has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Section 15B of the Act requires the MSRB to establish professional standards for municipal advisors.
On February 26, 2015, the Commission approved amendments to MSRB Rule G-3, which established the qualification examination requirements for municipal advisor representative and municipal advisor principal candidates.
The MSRB developed the Series 50 examination content outline in accordance with
The Series 50 examination will consist of 100 multiple-choice questions. Candidates are allowed 180 minutes to complete the examination.
The Series 50 examination content outline has been developed to assist municipal advisor representative candidates in preparing for the Series 50 examination and will be available on the MSRB's Web site. The Series 50 examination content outline describes the following five topical sections comprising the examination: (1) Understanding SEC and MSRB Rules Regarding Municipal Advisors (12 questions); (2) Understanding Municipal Finance (35 questions); (3) Performing Issuer's Credit Analysis and Due Diligence (12 questions); (4) Structuring, Pricing and Executing Municipal Debt Products (31 questions); and (5) Understanding Requirements Related to the Issuance of Municipal Debt (10 questions).
The reference materials section of the Series 50 examination content outline is intended to provide candidates with a list of resources, which when used in conjunction with the Series 50 examination content outline, can assist candidates in preparing for the Series 50 examination. The reference materials were recommended by municipal advisors as having been helpful resources in carrying out the job functions of a municipal advisor. The reference materials are not intended to be all-inclusive, nor are the reference materials intended to specifically represent content that may be covered on the examination.
Prior to announcing the effective date of the Series 50 examination, the MSRB will conduct a pilot for the Series 50 examination. The Series 50 pilot examination will assist the MSRB in validating the bank of examination questions and establishing the passing score. The Series 50 pilot examination will consist of 120-125 questions. Candidates will have 240 minutes to complete the Series 50 pilot examination.
The selection specifications for the Series 50 examination, which the MSRB has submitted under separate cover with a request for confidential treatment to the Commission's Secretary pursuant to Rule 24b-2 under the Act,
Section 15B(b)(2)(A) of the Act authorizes the MSRB to prescribe standards of training, experience, competence, and such other qualifications for associated persons of municipal advisors as the Board finds necessary or appropriate in the public interest or for the protection of investors and municipal entities or obligated persons.
The MSRB believes that the Series 50 examination content outline for the Series 50 examination is consistent with the provisions of Section 15B(b)(2)(A) of the Act in that the Series 50 examination content outline is designed to ensure that individuals are sufficiently qualified to perform municipal advisory activities.
Section 15B(b)(2)(C) of the Act
In considering these standards, the MSRB was guided by the Board's Policy on the Use of Economic Analysis.
The MSRB does not believe that the Series 50 examination content outline will impose any burdens that are not necessary or appropriate in furtherance of the purposes of the Act.
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”) amended Section 15B of the Exchange Act to provide for the regulation by the SEC and the MSRB of municipal advisors and to grant the MSRB certain authority to protect municipal entities and obligated persons.
The economic baseline for the Series 50 examination content outline includes the Dodd-Frank Act which established the federal regulatory framework for municipal advisors, required the MSRB to establish standards of training, experience, competence and other qualifications for municipal advisors and their associated persons, and required associated persons of municipal advisors to pass examinations to demonstrate that they meet the standards the Board finds necessary or appropriate in the public interest or for the protection of investors, and municipal entities or obligated persons.
The MSRB developed the Series 50 examination content outline in accordance with
Relative to the economic baseline, which includes the requirement that municipal advisors demonstrate by passing an examination that they meet standards deemed necessary or appropriate in the public interest or for the protection of investors, municipal entities and obligated persons, the MSRB believes that the economic impact of the Series 50 examination content outline is
While any examination intended to identify those individuals who meet a particular standard of competence may represent a barrier to entry, the MSRB believes that the standard that successful completion of the examination will demonstrate is necessary to protect investors and
Based on the well-established and nationally-accepted process used by the MSRB to develop the Series 50 examination content outline, the MSRB has no reason to believe that the Series 50 examination content outline will pose any greater burden on individuals associated with smaller firms than those associated with larger firms or that the burden could be materially reduced while still achieving the purposes of the Act. While it is possible that small municipal advisors may have access to fewer resources to prepare for this examination, the MSRB does not believe this will affect the competitiveness of the market.
Written comments were neither solicited nor received on the proposed rule change.
Pursuant to Section 19(b)(3)(A)
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative until 30 days after the date of filing.
The Commission hereby grants the MSRB's request and believes that designating the proposed rule change operative upon filing is consistent with the protection of investors and the public interest.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
For the Commission, pursuant to delegated authority.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of A.B. Watley Group, Inc. (CIK No. 1035632), a void Delaware corporation with its principal place of business listed as New York, New York, with stock quoted on OTC Link (previously, “Pink Sheets”) operated by OTC Markets Group, Inc. (“OTC Link”) under the ticker symbol ABWG, because it has not filed any periodic reports since the period ended March 31, 2005. On November 1, 2013, A.B. Watley Group received a delinquency letter sent by the Division of Corporation Finance requesting compliance with their periodic filing obligations.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Cambridge Heart, Inc. (CIK No. 913443), a void Delaware corporation with its principal place of business listed as Foxborough, Massachusetts, with stock quoted on OTC Link under the ticker symbol CAMH, because it has not filed any periodic reports since the period ended September 30, 2012. On December 22, 2014, Cambridge Heart received a delinquency letter sent by the Division of Corporation Finance requesting compliance with their periodic filing obligations.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of iGenii Inc. (CIK No. 1441573), a delinquent Delaware corporation with its principal place of business listed as New York, New York, with stock quoted on OTC Link under the ticker symbol IGNI, because it has not filed any periodic reports since the period ended September 30, 2012. On May 23, 2014, iGenii received a delinquency letter sent by the Division of Corporation Finance requesting compliance with their periodic filing obligations.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of RKO Resources, Inc. (a/k/a Shamika 2 Gold, Inc.) (CIK No. 1330323), a defaulted Nevada corporation with its principal place of business listed as Montreal, Quebec, Canada, with stock quoted on OTC Link under the ticker symbol SHMX, because it has not filed any periodic reports since the period ended September 30, 2012. On November 25, 2013, RKO Resources received a delinquency letter sent by the Division of Corporation Finance requesting compliance with their periodic filing obligations.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies.
Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EDT on May 5, 2015, through 11:59 p.m. EDT on May 18, 2015.
By the Commission.
Social Security Administration.
Request for information.
The Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235), provided us with money under section 1110 of the Social Security Act to begin the design, development, and implementation of an early intervention demonstration to test innovative strategies aimed at helping people with disabilities remain in the workforce. The President's FY 2016 Budget requested additional funds to support a complete demonstration project. In order to inform the development of that demonstration, this request for information (RFI) seeks recommendations on targeted design features related to improving employment and earnings outcomes for people with disabilities, specifically individuals with mental impairments. The input we receive will inform and complement ongoing interagency deliberations about the best use of funds for an initial demonstration project relevant to future policy discussions for the Social Security Disability Insurance (DI) and Supplemental Security Income (SSI) programs.
Comments must be received by June 8, 2015.
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. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2015-0023 so that we may associate your comments with the correct docket.
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Comments are available for public viewing on the Federal eRulemaking portal at
Susan Wilschke, Office of Retirement and Disability Policy, Social Security Administration, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, (410) 966-8906. For information on eligibility or filing for benefits, call our nation toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security online, at
The DI program provides benefits for disabled workers and their families. We paid more than $141 billion in DI benefits to almost 11 million people in 2014. The SSI program guarantees a
This request for information offers States, community-based and other non-profit organizations, philanthropic organizations, researchers, and other interested members of the public the opportunity to provide recommendations on effective approaches for improving employment and earnings outcomes for individuals with disabilities, specifically individuals with mental impairments. For the purposes of this RFI, “early intervention” means serving an individual with impairment before the individual is determined eligible for benefits in either the DI or SSI programs.
In light of research indicating that health problems often begin in advance of complete disability onset, and data showing that earnings often begin to decline well before benefits are awarded, we believe demonstrations on early intervention are merited and may lead to innovative approaches for assisting people with disabilities to succeed in the workforce. Our past demonstrations have identified certain interventions
Public input responding to this notice will inform ongoing deliberations of a Federal interagency workgroup and a Federal Technical Advisory Panel—including representatives from SSA, the Department of Health and Human Services, the Department of Education, the Department of Labor, and the Office of Management and Budget—about the design and parameters of the demonstration funded by our FY 2015 Appropriation.
SSA and other Federal agencies have begun to outline the basic parameters of an early intervention demonstration project for individuals with mental impairments. This discussion provides background on those broad parameters and potential models under consideration, and the next section requests information on a series of program design issues.
Early interventions may be warranted in light of research indicating that health problems begin in advance of complete disability onset and data showing that earnings begin to decline well before DI benefits are awarded. Some evidence suggests that intervening before an individual fully detaches from the labor market may be more effective than providing services after disability benefit receipt. For example, the Centers for Medicare and Medicaid Services Demonstration to Maintain Independence and Employment (DMIE) found that health and employment supports for working adults with potentially disabling conditions lowered the likelihood of receiving payments from our disability programs. The National Institute of Mental Health's Recovery After an Initial Schizophrenia Episode (RAISE) project is testing whether intervening at the point of first diagnosis and using early and aggressive treatment will reduce the symptoms and prevent the gradual deterioration of functioning that is characteristic of chronic schizophrenia. However, a broader, more extensive research base would help policymakers design programs and policies that improve outcomes for individuals and reduce program costs.
A key challenge for early interventions is to identify individuals at risk of becoming long-term DI beneficiaries or SSI recipients who would also have the potential to benefit from the intervention methods. For an initial demonstration, we are considering targeting intervention services towards prime-working-age people with disabilities to keep them in the labor market. Specifically, we are interested in developing an intervention model for workers with mental impairments between the ages of 18 and 50 which would allow them to remain in the labor force. By providing medical and/or vocational services prior to benefit receipt in a demonstration, we will be able to test whether such services help individuals with these impairments remain and succeed in the workforce.
We are considering a design in which individuals will be identified as early as possible after a first episode of mental illness. Our initial focus for target populations is potentially on two groups: (1) Individuals receiving services from a State Vocational Rehabilitation (VR) agency who are not DI or SSI disability beneficiaries; and (2) individuals who have recently applied for SSI or DI disability benefits and whose claims were denied. Both of these groups include individuals who are on the margin between employment and receiving disability benefits. Prior research estimates that 40 percent of DI claimants denied at the appeals level become DI beneficiaries within 10 years.
We are considering an approach that includes some of the features of the successfully implemented Mental Health Treatment Study (MHTS). The MHTS demonstration found that employment supports, along with medical support and coordinated care, were successful in improving health, lowering hospitalizations, and increasing employment for DI beneficiaries with schizophrenia and affective disorders. The MHTS followed the evidence-based Individual
The demonstration could provide participants with an intensive set of behavioral health and related services beyond what is available through the individual's existing health plan and long-term employment services, to help them remain in or return to the labor market rather than seek SSA disability benefits. For example, IPS services are delivered by supported employment teams that operate within community mental health agencies and other medical providers, with a key differentiator from other interventions being the linkage between employment and medical services.
The MHTS is one of several studies using the IPS model to show increases in employment rates for persons with severe mental impairments.
We intend to issue a contract solicitation for demonstration implementation later in FY 2015 with an award in early calendar year 2016. SSA and collaborating agencies are considering a multi-site demonstration, an approach on which we solicit feedback in this RFI. A multi-site demonstration would likely include a 1-year design refinement phase, during which one or two sites would begin enrollment to inform implementation of any additional sites during calendar year 2016. The demonstration would then transition to a five-year implementation phase. Over that period, we would evaluate impacts on outcomes such as employment, earnings, health, and DI and SSI applications and benefit receipt.
Through this RFI, we are soliciting feedback from a broad range of stakeholders on the initial design of an early intervention demonstration focused on improving outcomes related to employment and earnings for individuals with mental impairments, including services that could optimize an individual's ability to obtain and retain employment. Responses to this RFI will inform the work of SSA and its interagency partners in designing a new demonstration project and potentially future projects.
This RFI is for planning purposes only and should not be construed as a solicitation or as an obligation on our part or on the part of participating Federal agencies.
We ask respondents to address the following questions, where possible, in the context of the discussion in this document. You do not need to address every question and should focus on those where you have relevant expertise or perspectives. To the extent possible, please clearly indicate which question(s) you address in your response.
1. What early intervention programs or practices have shown promise at the State or local level to assist workers with mental health impairments to remain in the workforce?
2. In the context of this demonstration project, what programs and practices might be especially applicable to individuals who might qualify for DI or SSI benefits in the absence of interventions?
3. What are the outcomes of interest that an evaluation should capture?
1. Should we focus on specific types of mental impairments in establishing the parameters for this demonstration? If so, which ones, and why those?
2. Would individuals with non-mental impairments benefit from similar services? If so, would the intervention look different and how?
3. We are considering focusing on individuals who are ages 18 to 50 for services in this demonstration. How appropriate is this age range?
4. We are considering focusing on individuals who are receiving services from a State VR agency but who are not SSA disability beneficiaries. Is this an appropriate population from which to draw a sample? If so, how can we identify those VR clients who are likely to apply for DI or SSI benefits in the future without inducing an application?
5. We are considering focusing on individuals who have applied for DI or SSI benefits and whose claims were denied. Is this an appropriate population from which to draw a sample?
6. Are there other populations on which we should consider focusing? How can we identify these populations?
7. What types of sites would be the most beneficial for us to consider including?
8. Are there sites we could look to as exemplars based on current practices? What evidence suggests these sites effectively address early intervention services for workers with mental impairments?
9. At how many sites should we consider implementing this demonstration?
10. How might we best consider structuring the demonstration to investigate the potential for screening workers for both their likelihood of receiving disability benefits and their likelihood of responding to employment supports?
11. What types of mental health services should we consider as an early intervention for workers with mental impairments?
12. What variations in timing should we consider for early interventions?
13. To what extent should certain mental health services be prioritized, whether behavioral health and related services, medication, or disease management services?
14. What are the best ways to involve workers with disabilities in planning and implementation in order to ensure that demonstration services will be effective in meeting their needs?
15. What mental health service program designs and interventions demonstrate promise for improving long-term employment outcomes for workers with disabilities? What evidence supports these interventions?
16. What specific employment-related interventions related to skill development, job training, job placement, or pre- and post-placement services should we consider?
17. What employment program designs and interventions demonstrate promise for improving long-term employment outcomes for workers with disabilities? What evidence supports these interventions?
We ask that each respondent include the name and address of his or her institution or affiliation, and the name, title, mailing and email addresses, and telephone number of a contact person for his or her institution or affiliation, if any.
By submitting material in response to this RFI, you agree to grant us a worldwide, royalty-free, perpetual, irrevocable, nonexclusive license to use the material, and to post it publicly. Further, you agree that you own, have a valid license, or are otherwise authorized to provide the material to us. You should not provide any material you consider confidential or proprietary in response to this RFI. We will not provide any compensation for material submitted in response to this RFI.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before May 27, 2015.
Send comments identified by docket number FAA-2015-0782 using any of the following methods:
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Robert Stegeman (816) 329-4140, Small Airplane Directorate, Federal Aviation Administration, 901 Locust Street, Kansas City, MO 64106.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before May 27, 2015.
Send comments identified by docket number FAA-2015-0971 using any of the following methods:
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Keira Jones (202) 267-4024, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Second meeting notice of RTCA Subcommittee 233.
The FAA is issuing this notice to advise the public of the second meeting of the RTCA Subcommittee 233.
The meeting will be held May 19th from 8:15 a.m.-5:00 p.m.; May 20th from 8:00 a.m.-5:30 p.m.; and May 21st from 8:00 a.m.-2:00 p.m.
The meetings will be held at Gulfstream Aerospace, 500 Gulfstream Road, Building Z, Savannah, GA 31408, Tel: (202) 330-0662.
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, or Web site at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of the RTCA Subcommittee 233. The agenda will include the following:
1. Introduction, Upcoming PMC Dates, Minutes from Last Meeting
2. Review TOR
3. Ed Kolano—Seattle ACO, Flight Test Pilot Evaluations
4. Rotorcraft Directorate Test Pilot Evaluations
5. Bruce Mahone—SAE Related Documentation
6. Alan Jacobsen—SAE ARP 5056
7. Outline Discussion
8. Subcommittee Formation
9. Scope Discussion
10. Subcommittee Initial Breakout Session
11. Planning for Next Meeting
1. Subcommittee Breakout Sessions
2. Subcommittee Breakout Sessions
3. Subcommittee Outbrief
4. Factory Tour
1. Leadership Team Wrap-up/Discussion on Outline Content
2. Subcommittee Assignments
3. Meeting Recap, Action Items, Key Dates
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), DOT
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by June 8, 2015.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Ronda Thompson at (202) 267-1416, or by email at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by June 8, 2015.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Ronda Thompson at (202) 267-1416, or by email at:
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Eighth Meeting Notice of RTCA Subcommittee 228.
The FAA is issuing this notice to advise the public of the eighth meeting of the RTCA Subcommittee 228.
The meeting will be held May 22nd from 9:00 a.m.-1:00 p.m.
The meeting will be held at RTCA, Inc., 1150 18th Street NW., Suite 910, Washington, DC 20036, Tel: (202) 330-0654.
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, or Web site at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of the RTCA Subcommittee 228. The agenda will include the following: Friday, May 22, 2015.
1. Welcome/Introductions/Administrative Remarks/SC-228 Participation Guidelines
a. Reading of the Public Announcement by the DFO
b. Reading of the RTCA Proprietary References Policy
2. Agenda Overview
3. Review/Approval of Minutes from Plenary #7 (RTCA Paper No. 256-14/SC228-019) held Friday, November 21st, 2014 at RTCA
4. Review of RTCA SC-228 Steering Committee Activity
5. Report from EUROCAE WG-73 on their progress
6. Report from WG-1 for Detect and Avoid progress on the DAA MOPS
7. Report from WG-2 for Command and Control progress on the CNPC MOPS
8. Action Item Review
9. Other Business
10. Date, Place and Time of Next Meeting(s)
a. Proposed—Plenary #9—Fall 2015 @ NASA Ames
b. Proposed—Plenary #10—
11. Adjourn Plenary
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 17 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
This decision is effective May 31, 2015. Comments must be received on or before June 8, 2015.
You may submit comments bearing the Federal Docket Management System (FDMS) numbers: Docket No. [Docket No. FMCSA-2000-8398; FMCSA-2002-12294; FMCSA-2004-17984; FMCSA-2005-20027; FMCSA-2005-20560; FMCSA-2006-24783; FMCSA-2007-27333; FMCSA-2007-27897; FMCSA-2009-0054; FMCSA-2011-0010; FMCSA-2011-0057], using any of the following methods:
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Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, 202-366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-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 procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381.
This notice addresses 17 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these 17 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are:
The exemptions are extended subject to the following conditions: (1) That each individual has a physical examination every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirements in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provides a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retains a
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 17 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (65 FR 78256; 66 FR 16311; 67 FR 46016; 67 FR 57267; 68 FR 13360; 69 FR 33997; 69 FR 61292; 69 FR 62741; 70 FR 2701; 70 FR 12265; 70 FR 16887; 70 FR 17504; 70 FR 30997; 71 FR 32183; 71 FR 41310; 71 FR 62147; 72 FR 12665; 72 FR 12666; 72 FR 25831; 72 FR 27624; 72 FR 39879; 72 FR 52419; 73 FR 61925; 74 FR 9329; 74 FR 11988; 74 FR 15586; 74 FR 19270; 74 FR 21427; 75 FR 66423; 76 FR 9856; 76 FR 17483; 76 FR 18824; 76 FR 20076; 76 FR 25762; 76 FR 29024; 78 FR 14410; 78 FR 16762; 78 FR 24300; 79 FR 24298). Each of these 17 applicants has requested renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the requirement specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption requirements. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice (FMCSA-2000-8398; FMCSA-2002-12294; FMCSA-2004-17984; FMCSA-2005-20027; FMCSA-2005-20560; FMCSA-2006-24783; FMCSA-2007-27333; FMCSA-2007-27897; FMCSA-2009-0054; FMCSA-2011-0010; FMCSA-2011-0057), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. 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 the Agency can contact you if it has questions regarding your submission.
To submit your comment online, got to
To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to
Maritime Administration, Department of Transportation.
Final policy.
This notice serves to inform interested parties and the public of the Maritime Administration's (MARAD) final policy to accept, evaluate and process license applications for the construction and operation of offshore deepwater port facilities for the export of oil and natural gas from the United States to foreign markets abroad and to use the existing Deepwater Port regulations for such purposes. On October 16, 2014, MARAD published a notice in the
This policy is effective May 7, 2015.
The complete file for this policy is available for inspection with the Docket Clerk, Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building, Room W12-140, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except on Federal holidays. You may also view the comments submitted to the docket via the Federal eRulemaking Portal at
You may contact Yvette M. Fields, Director, Office of Deepwater Ports and Offshore Activities, Maritime Administration, at (202) 366-0926. You may send mail to
Pursuant to this notice, MARAD announces its final policy to accept and process applications for licenses for the ownership, construction and operation of deepwater port oil and natural gas export facilities. MARAD previously published a Notice of Proposed Policy (79 FR 62242, Oct. 16, 2014).
In response to the
In its letter, NYDOS provided four substantive comments on the proposed policy. NYDOS' first comment requested that MARAD include the approval from the Governor(s) of adjacent coastal State(s) as a fourth licensing requirement for the conversion of licensed import facilities to export facilities. Receiving approval or presumptive approval of the Governor of the adjacent coastal State(s) is a mandatory requirement of the Deepwater Port Act, as amended, (DWPA) (33 U.S.C. 1503(c)(8)), and as such will continue to be a condition for issuance of a deepwater port export facility license.
NYDOS' second comment requested that MARAD's proposed policy language require compliance with the nine factors specified in 33 U.S.C. 1503(c), not simply “consideration” of those factors as currently stated in the policy. MARAD has clarified the final policy to make it clear that an applicant must meet all nine conditions set forth in 33 U.S.C. 1503(c) before the Maritime Administrator may issue a license for an export facility. The Maritime Administrator's Deepwater Port Licensing record of decision (ROD) will address whether the (import or export) deepwater port license application satisfies each of the nine criteria and the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4347, and other applicable requirements. The ROD will serve as the decision document (and, if appropriate, may contain a Finding of No Significant Impact) for purposes of complying with NEPA.
NYDOS' third comment requested that, at a minimum, NEPA analysis for an export facility should address: The offshore port; the processing and liquefaction/regasification facilities; new pipelines; and other infrastructure necessary to support the production and conveyance of oil and/or natural gas to and from the export facility. The NEPA process requires a thorough analysis of the direct, indirect and cumulative environmental impacts of the proposed action. This analysis includes all aspects of the siting, construction, operation and decommissioning of the deepwater port. The commenter's concern regarding the components and operational aspects of the deepwater port are currently and will continue to be addressed in the statutorily-required NEPA analysis, which is performed as part of all deepwater port license applications. The specific components of a deepwater port terminal, including those the commenter listed, are and will continue to be included in the preparation of the NEPA document. Finally, NYDOS requested that to ensure the NEPA review process adequately identifies and analyzes all potential impacts, MARAD's final policy clearly describe the relevant shore-based and offshore infrastructure that will be considered within the scope of an export facility. The U.S. Coast Guard (Coast Guard) and MARAD's environmental review of the proposed action includes all direct, indirect and cumulative impacts. This review must cover all offshore and onshore components and support activities associated with the deepwater port. However, it is important to note that every deepwater port application is considered on a case-by-case basis. While the DWPA provides a comprehensive definition of what constitutes a deepwater port, it would be inappropriate to try and set forth a specific list of shore-based and offshore components that should be considered as part of an application and made part of the NEPA analysis.
COA provided five comments on the proposed policy. COA's first comment stated that it is critical that MARAD's proposed policy have broad application and require a full review process that, among other requirements, engages the public in a meaningful way. In compliance with the DWPA, NEPA and other applicable laws and regulations, MARAD will ensure that a full and comprehensive public engagement and application review process is applied to the processing of all deepwater port license applications for both imports and exports.
COA's second comment stated that it agrees with MARAD's proposal to encompass both established and proposed facilities in any export licensing policy it might adopt. The comment goes on to state that COA finds the proposed policy is sufficiently broad in this regard.
In addition, COA discussed the scope of review contained in MARAD's proposed policy and expressed support for the concept of treating all requests for export authorization as new license applications and indicated support for the scope of review to occur under the proposed policy. MARAD will treat any proposal for deepwater port exports as a new license application, and MARAD will apply a full and comprehensive application review and public engagement process to the processing of export applications.
COA's fourth comment requested that in instances where MARAD prepares an Environmental Assessment and intends to issue a Finding of No Significant Impact, it should provide a public review and comment period of not less than 90 days. According to COA, such a requirement would help maintain the integrity of the export application review process, ensure public involvement therein, and further enhance MARAD's environmental review.
As part of the existing application review process, MARAD ensures that an
The final comment provided by COA relates to the environmental review of indirect and cumulative impacts. COA stated that there are a number of indirect and cumulative impacts that MARAD should consider with respect to any export license application. They include the impacts of a facility (operating with the functionality the proponent seeks) upon (1) the natural aquatic environment, including from increased vessel traffic and shipping lane congestion, (2) air quality, both on and offshore, (3) the environment onshore and proximate to the distribution infrastructure, (4) the environment in and around the extraction areas, and (5) the upstream (
The final commenter, a private citizen, supported the proposed policy and requested that MARAD follow the precedent established by former MARAD Administrator Sean Connaughton and link application approval to the use of U.S. vessels and U.S. crews to export liquefied natural gas (LNG). Under this policy, MARAD will continue its efforts to support the use of U.S. flag vessels and U.S. crews in the operation of all deepwater port licensed facilities.
On December 20, 2012, the Coast Guard and Maritime Transportation Act of 2012 (Pub. L. 112-213, Sec. 312 (Dec. 20, 2012)) (CG&MT Act) amended Section 3(9)(A) (33 U.S.C. 1502(9)(A)) of the Deepwater Port Act (DWPA) and brought offshore export facilities within the DWPA's definition of a deepwater port. Previously, the definition of a deepwater port was limited to facilities transporting oil or natural gas to any State. The Secretary of Transportation must license the ownership, construction and operation of a deepwater port, now including export facilities, pursuant to 33 U.S.C. 1503(a) and (b). This amendment will be implemented in accordance with existing statutory and regulatory requirements applicable to the DWPA. The CG&MT Act provided no other amendments to the DWPA.
Pursuant to 33 U.S.C. 1501-1524,
Additionally, the Coast Guard has previously developed comprehensive regulatory requirements for deepwater port license applications. Regulations detailing the requirements of the deepwater port license application process; design, construction, and equipment; and port operations can be found in 33 CFR parts 148, 149 and 150. Additionally, it is noted that on April 9, 2015, the Coast Guard published in the
Accordingly, MARAD, with the concurrence of the Coast Guard, intends to use the existing Deepwater Port regulations for the review, evaluation and processing of any deepwater port license application involving the export of oil or natural gas from domestic sources within the United States as provided for in 33 CFR parts 148, 149 and 150.
A deepwater port license issued by MARAD does, not, by itself, convey an authorization to export crude oil or natural gas. Pursuant to 15 CFR 754.2, a license granted by the U.S. Department of Commerce (DOC) would generally be required for exports of crude oil. Exports of natural gas, including LNG, will generally require authorization from DOE pursuant to Section 3 of the Natural Gas Act of 1938. Exports of refined petroleum products do not generally require an export license. MARAD licenses the deepwater port facility, while DOC and DOE approve the transactions that utilize the facility.
Any deepwater port applicant who proposes to export oil or natural gas from domestic sources within the United States must submit an export-specific comprehensive license application conforming to all established and applicable deepwater port licensing requirements and regulations. Note that 33 CFR 148.5 defines “oil” as “petroleum, crude oil and any substance refined from petroleum or crude oil.” Thus, this
The considerable technical, operational and environmental differences between import and export operations for oil or natural gas projects are such that any licensed deepwater port facility operator or any proponent of a deepwater port that has an application in process who proposes to convert from import to export operations must submit a new license application (including application fee) and conform to all licensing requirements and regulations in effect at such time of application. For licensed deepwater ports, an application to convert from import operations to export operations requires, at a minimum: (1) Approval from DOE or other approval authority to export oil or natural gas to free trade and/or non-free trade agreement countries; (2) a new or supplemental environmental impact statement or environmental assessment pursuant to NEPA that assesses the environmental impacts of the proposed change in operations; and (3) a revised operations manual that fully describes the proposed change in port operations. Only after all required application processes are completed, and MARAD issues a ROD or Finding Of No Significant Impact (FONSI) that explicitly addresses the nine mandatory criteria specified in the DWPA (33 U.S.C. 1503(c)), may the Maritime Administrator approve, approve with conditions, or disapprove an application to export oil or natural gas through a deepwater port.
For deepwater ports that already have a license to import oil or natural gas, if the Maritime Administrator approves an application to convert to export operations, the licensee must surrender the existing license, and the Maritime Administrator will issue a new license, as outlined above, with conditions appropriate to all intended activities, including, if applicable, authority to engage in bidirectional oil or natural gas import and export operations. For applications to site, construct and operate a new deepwater port, the Maritime Administrator will issue a new license with conditions appropriate to the applied-for activity.
MARAD is publishing this policy in the
The Coast Guard and Maritime Transportation Act of 2012; The Deepwater Port Act of 1974, as amended, 33 U.S.C. 1501-1524; 49 CFR 1.93.
By Order of the Maritime Administrator.
Notice of agency action.
Pipeline and Hazardous Materials Safety Administration, Department of Transportation.
On July 3, 2014, (79 FR 38124) the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a notice in this docket to advise all liquefied natural gas facility (LNG) operators subject to PHMSA user fee billing of a change in the LNG user fee rates to align these rates with the actual allocation of PHMSA resources to LNG program costs. PHMSA is publishing this notice to explain changes PHMSA has made to the rate plan described in the July notice in response to the comments received and to communicate PHMSA's final LNG user fee plan.
Blaine Keener by telephone at 202-366-0970, by email at
The Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1986 (Pub. L. 99-272, Sec. 7005) codified at Section 60301 of Title 49, United States Code, authorizes the assessment and collection of user fees to fund the pipeline safety activities conducted under Chapter 601 of Title 49. PHMSA assesses each operator of interstate and intrastate gas transmission pipelines (as defined in 49 CFR part 192) and hazardous liquid pipelines carrying crude oil, refined petroleum products, highly volatile liquids, biofuel, and carbon dioxide (as defined in 49 CFR part 195) a share of the total Federal pipeline safety program costs in proportion to the number of miles of pipeline for each operator. In accordance with COBRA, PHMSA also assesses user fees on LNG facilities (as defined in 49 CFR part 193).
On July 16, 1986, the agency published in the
In 2014, PHMSA determined that certain changes to the calculation table were necessary because the LNG rates had not been adjusted to reflect the increase in gas program costs since 1986. On July 3, 2014, (79 FR 38124) PHMSA issued a
During the 2-month response period, PHMSA received comments on the
This notice responds to the comments, which may be found at
BGE proposed to increase the billing tiers for facilities with >500,000 barrels to add appropriate larger tiers as appropriate for import/export facilities to more fairly apportion costs across LNG facility types. BGE noted that “These large import and, in the future, export terminals are commercially oriented and operated and are not limited like smaller storage capacity facilities generally associated with satellite and peak shaving facilities operated typically by LDC's under limited Rate of Returns (ROR's) authorized by their state public utility commissions (PUCs).” BGE further noted that under 49 U.S.C. 60301(a), “The fees shall be based on usage (in reasonable relationship to volume-miles, miles, revenue, or a combination of volume-miles and revenues) of the pipelines. If the larger base load facilities that are import terminals and those terminals that become authorized to export and their facilities are constructed, thereby causing PHMSA increased regulatory costs, these facilities should carry a larger burden of the total LNG program costs moving forward.”
Additionally, after the design review envisioned in the law for new large export terminals is implemented, PHMSA will reevaluate the user fee approach for LNG plants, gas transmission pipelines, and hazardous
“If a ratio of LNG user fee to overall program costs is necessary and justifiable, consider a user fee that matches PHMSA's actual LNG regulatory expenditures and that excludes the dramatic increase for design reviews by PHMSA (likely much closer to 1% for example); retain current LNG user fee assessment values for LNG facilities which are satellite and/or peak shaving (with or without liquefaction) due to their limited operating activity, limited ability to generate revenue, and regulatory effort by PHMSA which has not increased dramatically to justify an approximately 800% user fee increase; and consider a combination assessment fee approach by applying the expanded stepped storage capacity based fee schedule with a facility type based multiplier to recognize the larger base load import/export facilities not limited to a ROR set by state public utility commissions.”
Based on the comments received, PHMSA has made several changes to the historical LNG user fee billing methodology. First, we have implemented an increase to 1.6 percent of gas program costs, based on current annual LNG expenditures. Secondly, the historical 5 billing tiers are expanded to 10 tiers. Instead of billing per plant, user fee bills are based on the sum of storage capacity for all plants reported by an operator. We considered implementing the cents per barrel method suggested by APGA, but determined that this methodology shifted too much burden from small operators.
PHMSA has placed a document in the docket that compares the historical per plant 5 tier fee, the new per operator 10 tier fee, and the APGA proposal for a per barrel fee.
PHMSA decided to bill per operator rather than per plant to reduce the burden on small operators with multiple
PHMSA added five new billing tiers to reduce the burden on small operators. These new tiers include an ultra-low storage capacity tier to reduce the burden on operators with storage capacity less than 2,000 barrels. Another tier was added for operators with less than 50,000 barrels of storage. The previous tier structure generated the same fee for all plants over 500,000 barrels of storage, but the highest storage volume in FY 2014 billing was 5 million barrels. We adjusted the boundaries of the top two tiers and added three new tiers for operators with very high storage capacity.
For example, in FY 2014, an operator with three small plants was billed a total of $3,750 for its three small plants. If PHMSA had implemented 10-tier billing per operator for FY 2014, Energy North Natural Gas Inc., would have paid 62 percent less. Under the cost per barrel approach suggested by APGA, the decrease would have been 11,670 percent. The APGA approach shifts too much of the financial burden from small operators.
In FY 2014, each of the eight operators of an import plant was billed $7,500. If PHMSA had implemented 10-tier billing by operator for FY 2014, each of these eight large operators would have paid 79 percent more. Under the cost per barrel approach suggested by APGA, the percent increase would have ranged from 57 to 83 percent. The percent increase for these large plants using the new PHMSA structure is comparable to the percent increase using the APGA proposal.
For FY 2015, PHMSA has implemented the 10-tier billing structure below to collect 1.6 percent of gas costs with full collection in FY 2015 billing, not over 3 years as previously proposed:
PHMSA continues to exempt mobile and temporary LNG plants from user fee billing.
PHMSA believes that an increase to 1.6 percent of gas costs accurately reflects the allocation of PHMSA resources to LNG operators. By implementing the 10-tier approach and billing by operator instead of by plant, PHMSA has established a rate plan that is fair and equitable to both small and large operators. Since PHMSA has determined that 1.6 percent of gas costs accurately reflect LNG regulatory costs, the increase has been implemented in FY 2015 user fee billing. PHMSA has placed a document in the docket that compares the actual FY 2014 bill and the actual FY 2015 bill for each operator. The largest LNG operator is being billed $40,212.00 and the smallest is being billed $2,394.00. In the future, PHMSA will ensure that LNG user fee rates continue to remain in proper alignment with program costs.
49 U.S.C. Chapter 60301 and 601.
Department of Treasury, Departmental Offices.
Notice and request for comments.
The Department of the Treasury invites the general public and other Federal agencies to comment on an extension of an existing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). The Department of the Treasury, Office of the Procurement Executive, is soliciting comments concerning the Solicitation of Proposal Information for Award of Public Contracts, which is scheduled to expire August 31, 2015.
Written comments must be received on or before July 6, 2015 to be assured of consideration.
You may submit comments by any of the following methods:
All responses to this notice will be included in the request for OMB's approval. All comments will also become a matter of public record.
Requests for additional information or a copy of the information collection can be directed to the addresses provided above.
Securities and Exchange Commission.
Proposed rule.
We are proposing amendments to Item 402 of Regulation S-K to implement Section 14(i) of the Securities Exchange Act of 1934 (the “Exchange Act”), as added by Section 953(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). Section 14(i) directs the Commission to adopt rules requiring registrants to disclose in a clear manner the relationship between executive compensation actually paid and the financial performance of the registrant. The proposed disclosure would be required in proxy or information statements in which executive compensation disclosure pursuant to Item 402 of Regulation S-K is required. The proposed disclosure requirements would not apply to emerging growth companies or foreign private issuers.
Comments should be received on or before July 6, 2015.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an Email to
• Use the Federal eRulemaking Portal (
• Send paper comments to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Studies, memoranda or other substantive items may be added by the Commission or staff to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on the SEC's Web site. To ensure direct electronic receipt of such notifications, sign up through the “Stay Connected” option at
Eduardo A. Aleman, Special Counsel, in the Office of Rulemaking, Division of Corporation Finance, at (202) 551-3430, 100 F Street NE., Washington, DC 20549.
We are proposing to add new paragraph (v) to Item 402 of Regulation S-K.
We are proposing amendments today as required by Section 953(a) of the Dodd-Frank Act.
Section 953(a) was enacted contemporaneously with other executive compensation-related provisions in the Dodd-Frank Act that are “designed to address shareholder rights and executive compensation practices.”
We believe that the pay-versus-performance disclosure mandated by Section 953(a), and the disclosure of the ratio of the median annual total compensation of employees to the annual total compensation of the chief executive officer mandated by Section 953(b),
In that regard, the disclosure mandated by Section 14(i) of the Exchange Act will give shareholders a new metric for assessing a registrant's executive compensation relative to its financial performance. Currently, Item 402 of Regulation S-K specifies the information that must be included when the applicable form or schedule requires executive compensation disclosure. Information on financial performance is required by other items throughout Regulation S-K, including in Item 201(e),
The disclosure required by Exchange Act Section 14(i) can supplement the discussion in the CD&A as part of the shareholder's evaluation of the registrant's executive compensation practices and policies, including for purposes of the shareholder advisory vote on executive compensation. The proposed amendment provides a factual description of how the executive compensation actually paid related to the financial performance of the registrant.
As with other Dodd-Frank Act rulemakings, we have sought comment from the public prior to the issuance of a proposing release.
As discussed in more detail below, our proposed amendments would require registrants to provide disclosure that can be compared across registrants, while also continuing to allow registrants to supplement their disclosure about pay-versus-performance to reflect the specific situation of the registrant and its industry. Throughout the release we seek comment on this approach, and whether alternative approaches should be considered to accomplish the objectives of Section 14(i) of the Exchange Act.
We are proposing new Item 402(v) of Regulation S-K that would require a registrant to provide a clear description of (1) the relationship between executive compensation actually paid to the registrant's NEOs and the cumulative total shareholder return (TSR) of the registrant, and (2) the relationship between the registrant's TSR and the TSR of a peer group chosen by the registrant, over each of the
The proposed amendments would:
• Require that the executive compensation used in calculating the executive compensation actually paid be total compensation as disclosed in the Summary Compensation Table,
• Require registrants to measure financial performance using TSR, as defined in Item 201(e) of Regulation S-K, and TSR of a registrant peer group;
• Require registrants to provide the executive compensation actually paid, total compensation as disclosed in the Summary Compensation Table, TSR, and peer group TSR in a prescribed table;
• Require the executive compensation disclosure to be presented separately for the principal executive officer, and as an average for the remaining NEOs identified in the Summary Compensation Table;
• Require the disclosure of the relationship between (1) executive compensation actually paid and registrant TSR (for the same executives identified in the registrant's Summary Compensation Table), and (2) registrant TSR and peer group TSR, in each case over the registrant's five most recently completed fiscal years;
• For smaller reporting companies, require the disclosure of the relationship between executive compensation actually paid and TSR over the registrant's three most recently completed fiscal years, without requiring these companies to provide disclosure of peer group TSR;
• Require that the disclosure be provided in tagged data format using eXtensible Business Reporting Language (XBRL); and
• Provide a phase-in of the requirement.
We discuss each of these aspects of our proposal in detail below.
Foreign private issuers, as defined in Exchange Act Rule 3b-4 [17 CFR 240.3b-4], would not be subject to the proposed amendment. Because securities registered by a foreign private issuer are not subject to the proxy statement requirements of Exchange Act Section 14,
Section 14(i) of the Exchange Act requires disclosure of the relationship of executive compensation actually paid and the financial performance of the registrant. Section 14(i) explicitly refers to Item 402 of Regulation S-K as the reference point for the executive compensation to be addressed by the new disclosure relating compensation to performance. Because the disclosure mandated by Section 14(i) relates specifically to executive compensation, we are proposing to require this new disclosure in a new Item 402(v) of Regulation S-K.
We are also proposing that the disclosure called for under new Item 402(v) of Regulation S-K be included in any proxy or information statement for which disclosure under Item 402 of Regulation S-K is required. Currently, Item 8 of Schedule 14A
We note that the language of Section 14(i) requires that the pay-versus-performance disclosure be provided “in any proxy or consent solicitation material for an annual meeting of the shareholders.” Shareholder annual meetings are typically the venue in which directors are elected.
Consistent with our approach to other Item 402 disclosures, we are proposing to require pay-versus-performance disclosure in these instances because we believe that the proposed disclosure would be most useful to shareholders when they are deciding whether to approve the compensation of the NEOs through the say-on-pay advisory vote, as well as when making voting decisions on a compensation plan in which NEOs participate, and making decisions pertaining to the election of directors. The Senate Report accompanying the statute references shareholder interest in the relationship between executive pay and performance as well as the general benefits of transparency of executive pay practices.
By proposing to require the disclosure as a new Item 402 requirement, however, the pay-versus-performance disclosure, unless otherwise limited, also would be required in a registrant's Form 10-K and in Securities Act registration statements that require Item 402 disclosure. The language of Section 14(i) calling for the disclosure to be provided in solicitation material for an annual meeting of the shareholders suggests that the disclosure was intended to be provided in conjunction with a shareholder vote, and we believe that the disclosure would be most useful in this context. Therefore, we are proposing that Item 402(v) specify that the disclosure would only be required in a registrant's proxy or information statement. In addition, as proposed, the information will not be deemed to be incorporated by reference into any filing under the Securities Act or the Exchange Act, except to the extent that the registrant specifically incorporates it by reference.
Section 14(i) of the Exchange Act requires us to adopt rules requiring disclosure of “information” that shows the relationship between executive compensation actually paid and registrant financial performance, but it does not specify the format or location of that disclosure.
We are not proposing a specific location within the proxy statement or information statement for this new disclosure. We note that the proposed disclosure item is related to the CD&A because it would show the historical relationship between executive pay and registrant financial performance, and may provide a useful point of comparison for the analysis provided in the CD&A. However, including this disclosure as part of CD&A might suggest that the registrant considered the pay-versus-performance relationship, as disclosed, in its compensation decisions, which may not be the case. Consequently, we believe it is appropriate to provide flexibility for registrants in determining where in the proxy or information statement to provide the disclosure required by proposed Item 402(v), although we
As proposed, Item 402(v) would require registrants to provide a table containing the values of the prescribed measures of executive compensation actually paid, TSR for the registrant and TSR for the selected peer group (see table below). For each amount disclosed as executive compensation actually paid in columns (c) and (e) of the prescribed table, proposed Item 402(v) would require footnote disclosure for both principal executive officer compensation and average NEO compensation of each amount deducted from, and added to the total compensation amount as provided in the Summary Compensation Table. As proposed, Item 402(v) also would require registrants to include in the table the total PEO compensation reported in the Summary Compensation Table (column (b), and, for NEOs, the average total compensation reported in the Summary Compensation Table (column (d)). Requiring disclosure of the Summary Compensation Table measure of total compensation together with our proposed measure of executive compensation actually paid would provide shareholders with disclosure of two measures in one single table and, we believe, would facilitate comparisons of the two measures of a registrant's executive compensation to the registrant's performance. To the extent that some shareholders may be interested in considering the relationship of performance with a measure of pay that excludes changes in the value of equity awards, they would be able to refer to the Summary Compensation Table measure of total compensation required alongside executive compensation actually paid in the tabular disclosure. Among other things, the Summary Compensation Table measure of total compensation reflects the grant date values of equity awards.
We are proposing that the disclosure provided in each column of the proposed table, including any footnote disclosure, be provided in interactive data format using XBRL.
Because the statute requires disclosure of the
The disclosure about the relationship would follow the table and could be described as a narrative, graphically, or a combination of the two, and, as proposed, would be required to be provided in interactive data format using XBRL. Disclosure of the relationship could include, for example, a graph providing executive compensation actually paid and change in TSR on parallel axes and plotting compensation and TSR over the required time period. Alternatively, disclosure of the relationship could include showing the percentage change over each year of the required time period in both executive compensation actually paid and TSR together with a brief discussion of that relationship. Under our proposed amendments, while the presentation format used by different registrants to demonstrate the relationship between executive compensation actually paid and TSR may vary, the table required by Item 402(v) together with existing disclosures would provide shareholders with clear information from which to determine the relationship between executive compensation actually paid and registrant performance so that shareholders could, if desired, compare the disclosure across registrants.
Exchange Act Section 14(i) provides that the disclosure about the relationship may include a graphic
1. Exchange Act Section 14(i) specifies that the pay-versus-performance disclosure must be provided in any proxy or consent solicitation materials that relate to annual shareholder meetings. For the reasons discussed above, we are proposing to require the disclosure in a registrant's proxy or information statement where Item 402 disclosure is required. Should we instead, or in addition, require the disclosure in any proxy or information statements relating to an annual shareholder meeting (or special meeting or written consent in lieu of a meeting)? Why or why not?
2. To retain consistency in the executive compensation disclosure provided in proxy statements and information statements, we propose that the Item 402(v) disclosure be included in information statements on Schedule 14C as well as proxy statements on Schedule 14A for which Item 402 disclosure is required. Is there any reason that the proposed disclosure mandated by Section 14(i) should be limited to registrants that are soliciting proxies or consents on Schedule 14A?
3. Should we also require the proposed disclosure in all other forms and schedules in which executive compensation disclosure is required? Would it be useful to shareholders to include the proposed disclosure in registration statements or annual reports as well? Why or why not?
4. Should the disclosure required by Exchange Act Section 14(i) be a separate requirement under Item 402 of Regulation S-K, as proposed? Alternatively, should we require the disclosure as part of the CD&A? If so, please explain why.
5. Should we require registrants to provide, as proposed, a table that includes the Summary Compensation Table total compensation, in addition to the values of the prescribed measures of executive compensation actually paid and registrant financial performance used for the pay-versus-performance disclosure? Why or why not?
6. Should we further prescribe the format of the proposed disclosure to promote comparability across registrants? For example, should we require that registrants present the percentage change in executive compensation actually paid and registrant/peer group financial performance over each year of the required time period graphically or in writing? Are there other format requirements we should consider? Should we provide further guidance on how to present the information in a way that promotes comparability? Are there ways our proposed table can be improved?
7. If we were to require a graphic presentation of the disclosure, should we specify requirements for this presentation so that each registrant provides comparable disclosure? Or should we allow registrants to determine the appropriate graphic presentation, if any? How should such a graph describe the relationship between executive compensation actually paid and registrant performance?
8. Should we provide sample charts or other examples of graphic presentations that would comply with proposed Item 402(v)? If so, please provide examples.
9. Would requiring disclosure of the values of the prescribed measures of executive compensation actually paid and registrant financial performance, without additional information about the “relationship” of those data points, satisfy Section 14(i) of the Exchange Act?
10. Would the stock performance graph required by Item 201(e) of Regulation S-K modified to add a line representing executive compensation actually paid provide meaningful disclosure about the relationship between executive pay and registrant performance? Why or why not? If so, should we require the stock performance graph, as so modified to be included in the proxy or information statement as well as, or instead of, in the annual report to security holders required by Exchange Act Rules 14a-3 and 14c-3
11. Under our current rules, unless specifically incorporated by reference, the disclosure required by Item 201(e) of Regulation S-K is not deemed to be “soliciting material” or to be “filed” with the Commission or subject to the liabilities of Exchange Act Section 18.
12. Would the proposed tabular disclosure of the values of the executive compensation and registrant financial performance enhance comparability across registrants? Are there other formats that would be more useful in that regard?
13. Should we require that the data be tagged in XBRL format, as proposed? Should we require a different format, such as, for example, eXtensible Markup Language (XML)?
14. Should we require that the data be tagged in preliminary proxy statements and information statements, as well as in definitive proxy statements and information statements? Why or why not?
15. Should we exempt smaller reporting companies from the XBRL requirement, rather than require them to provide such data? Why or why not? Would the costs be different for smaller reporting companies to comply with the proposed requirement to provide the data in XBRL format as compared to other companies? What would be the impact of not requiring tagging for smaller reporting companies? Should we, as proposed, provide a phase-in for smaller reporting companies to tag the disclosure? Why or why not? Should the period be longer or shorter than three years?
16. Instruction 1 to Item 402(c)(2)(iii) and (iv) of Regulation S-K permits a registrant to omit disclosure in the Summary Compensation Table of the salary or bonus of an NEO if it is not calculable as of the latest practicable date.
Exchange Act Section 14(i) does not specify which executives must be included in the disclosure of “executive compensation actually paid.” For registrants other than smaller reporting companies, we are proposing that the executives covered by the proposed Item 402(v) disclosure be the “named executive officers” as defined in Item 402(a)(3) of Regulation S-K.
We note that Section 14(i) specifically refers to compensation required to be disclosed under Item 402 of Regulation S-K. Because Item 402 of Regulation S-K requires disclosure of NEO compensation, we believe that Congress intended for the rules to provide disclosure about that group. We also believe that covering only the NEOs should help to mitigate some of the costs associated with the proposed disclosure because registrants are already required to make the determination of who is an NEO and to track information about their compensation. Commenters that addressed this issue were generally supportive of requiring that the pay-versus-performance disclosure cover the NEOs.
We are proposing to require that the disclosure be provided separately for the PEO and as an average for the remaining NEOs identified in the Summary Compensation Table. Several commenters noted that shareholders have a particular interest in the compensation of the PEO.
Finally, we are proposing to require disclosure of the average compensation actually paid for the remaining NEOs. We believe disclosure of the relationship of performance to average NEO compensation would be more meaningful to shareholders than individual or aggregate NEO compensation. There can be significant variability in the identity of the registrant's other NEOs over a five-year period. Moreover, the number of NEOs for whom Item 402 disclosure is required may fluctuate from year-to-year, which would make an aggregate total not comparable year over year.
17. Should we require that the proposed disclosure cover the NEOs as defined in Item 402(a)(3) of Regulation S-K, or Item 402(m) for smaller reporting companies, as proposed? Alternatively, should we require disclosure for a different group of executives than the NEOs and, if so, how should such a group be defined? For example, would the appropriate group be all executive officers as defined in Rule 3b-7 under the Exchange Act?
18. Should we require registrants to provide the pay-versus-performance disclosure for NEOs other than the PEO as an average, as proposed, or should we specify that the disclosure must be made either in the aggregate (
19. Should we require separate disclosure for the PEO, as proposed? Should we require, in instances where a registrant had more than one PEO in a given year, that the amounts for each PEO be added together, as proposed? Under our executive compensation disclosure rules, if an individual served in the capacity of PEO during
20. Should we require disclosure for only the PEO? Would information about the non-PEO NEOs be meaningful or useful for investors? Would information about the PEO's compensation provide adequate information to investors about the pay-versus-performance alignment of other NEOs? Would limiting the scope of disclosure to the PEO result in meaningful cost savings to registrants, for example by limiting the extent to which they must perform recalculations of compensation actually paid (see Section II.D below) or average calculations? Would limiting the disclosure to the PEO affect the usefulness of the information for investors?
Exchange Act Section 14(i) does not define the phrase “executive compensation actually paid,” but it does require a “clear description of any compensation required to be disclosed by the registrant” under Item 402 of Regulation S-K.
Although Exchange Act Section 14(i) refers to compensation required to be disclosed under Item 402 of Regulation S-K, it also uses the phrase “actually paid,” which differs from disclosure required under Item 402 of “compensation awarded to, earned by or paid to” the NEOs.
Some commenters were of the view that we should not prescribe the specific compensation elements to be covered
Other commenters recommended that we limit the compensation required to be disclosed for purposes of the pay-versus-performance disclosure to the amounts that are based on the financial performance of the company.
We are aware that a number of registrants have used the concepts of “realizable pay” and “realized pay” in their proxy statements as a means of comparing pay and performance.
Because the statute does not define “executive compensation actually paid,” we are using our discretion to define that term for the purpose of proposed Item 402(v) disclosure.
We propose to deduct the change in the actuarial present value of all defined benefit and pension plans from the Summary Compensation Table total for purposes of proposed Item 402(v).
We believe that including only the service cost for services rendered by the executive during the applicable year is a more appropriate measure for purposes of determining compensation “actually paid” during the applicable year because it is limited to pension costs for benefits earned during that year. The amount we proposed to include may be viewed to approximate the value that would be set aside currently by the registrant to fund the pension benefits payable upon retirement for the service provided during the applicable year. We recognize that registrants may differ as to whether they use defined benefit or defined contribution retirement plans, and this proposed change to the amount disclosed in the Summary Compensation Table is intended to provide a more meaningful comparison across registrants of the amounts “actually paid” under both types of plan. For defined contribution plans, the Summary Compensation Table requires disclosure of registrant contributions or other allocations to vested and unvested defined contribution plans for the applicable fiscal year,
We do not expect that the proposed adjustments will require the collection of significant new data by registrants, or reveal significant new information to shareholders relative to the compensation disclosure that is currently required. The pension's annual service cost is not required to be reported separately, but can be calculated based on information reported in, and in footnotes to, the Pension Benefits Table. We believe that, for purposes of proposed Item 402(v), using the actuarially determined service
Consistent with the current disclosure requirements of the Summary Compensation Table, the compensation calculation under proposed Item 402(v) would include above-market or preferential earnings on deferred compensation that is not tax-qualified because these amounts represent compensation accrued during the relevant year.
We are proposing that equity awards be considered actually paid on the date of vesting and valued at fair value on that date, rather than fair value on the date of grant as required in the Summary Compensation Table.
We do not believe that an award requiring exercise should be considered actually paid only upon its exercise, because once the award is vested the executive can control how and when the award is monetized, and thus could influence pay-versus-performance disclosure by controlling the fiscal year in which the executive receives the compensation. Changes in the fair value of the award after vesting generally reflect investment decisions made by the executive rather than compensation decisions made by the registrant.
The value of stock awards upon vesting is disclosed in the Option Exercises and Stock Vested Table.
In particular, the terms of unexercised option awards in a given year, including their exercise prices and expiration dates, are required to be disclosed (together with information about other outstanding awards) in the Outstanding Equity Awards at Fiscal Year-End Table.
Accordingly, for purposes of proposed Item 402(v), the amounts reported pursuant to Items 402(c)(2)(v) and (vi) would be subtracted from total compensation reported in the Summary
• For awards of stock, that vested in the applicable year, the fair value at vesting date, computed in accordance with the fair value guidance in FASB ASC Topic 718; and
• For awards of options with or without tandem stock appreciation rights (“SARs”) that vested in the applicable year, the fair value at vesting date, computed in accordance with the fair value guidance in FASB ASC Topic 718. As proposed, a registrant would be required to disclose vesting date valuation assumptions if they are materially different from those disclosed in its financial statements as of the grant date.
For example, a registrant grants an option (“original award”) for 1,000 shares of common stock with an exercise price of $20 per share. By its terms, the original award vests upon completion of a two-year service period. Upon vesting, the then fair value of the original award is included in compensation actually paid. After the original award vests, assume the registrant modifies its terms to reduce the exercise price to $15 per share with 50% vesting immediately and 50% vesting upon completion of another two-year service period (“modified award”). The incremental fair value that is included in compensation actually paid will be computed at each of the modified award's two vesting dates based on the then excess fair value of the ratable 500 shares using the modified award terms compared with the original award terms. In this example, compensation actually paid would be determined three times, as the full fair value of the original award at its vesting and the pro rata incremental fair value amounts at each of the two vesting dates of the modified award.
21. Does our proposed definition appropriately capture the concept of “executive compensation actually paid?” Why or why not? Are there elements of compensation excluded by our proposed definition that should not be? Alternatively, does the proposed definition include any items that should be excluded? If so, which ones and why?
22. Our proposal is designed, in part, to enhance comparability across registrants. Is comparability across registrants relevant or necessary in determining which compensation elements should be covered by the pay-versus-performance disclosure? Why or why not?
23. Under our proposed approach, the disclosure may not necessarily align a particular executive's compensation with the time period during which the registrant's performance may be attributed to the executive. For example, this may be the case where a turn-around specialist is hired and provided a substantial incentive payment up front in order to assume the task of improving the company's performance. Should our approach account for this? If so, should we require this to be addressed in supplemental disclosure? Are there other approaches we should consider?
24. Instead of our proposal, should we permit a principles-based approach that would allow registrants to determine which elements of compensation to include, so long as they clearly disclosed how the amount was calculated? Why or why not? How should such a provision be structured? What requirements should we include?
25. Are there alternative methods of determining which compensation is relevant to pay-versus-performance disclosure that we should consider?
26. Instead of our proposal, should we require only the use of the total compensation reported in the Summary Compensation Table and permit registrants to supplement this disclosure as they determine best reflects how their compensation relates to company performance? How would this approach affect the usefulness, comparability and cost of the pay-versus-performance disclosure?
27. Does our proposal to require only the actuarial present value of benefits attributable to services rendered during the applicable fiscal year, rather than the change in actuarial present value of pension benefits that is required by the Summary Compensation Table, appropriately reflect compensation “actually paid” to NEOs during that year for purposes of the pay-versus-performance disclosure mandated by Section 14(i)?
28. Is our proposal to include in the Item 402(v) calculation only above-market or preferential earnings on deferred compensation that is not tax-qualified appropriate? Should the calculation instead include all earnings on deferred compensation that are not tax-qualified rather than just the above-market portion? Should the calculation only include the above-market portion once any vesting conditions applicable to those earnings have been satisfied?
29. Should we value equity awards at vesting date fair value as proposed? Should we instead value equity awards at grant date fair value as currently required by Item 402(c)(2)(v) and (vi) or fair value at some other point in time? If so, why? Should we require disclosure of vesting date valuation assumptions if they are materially different from those disclosed in a registrant's financial statements as of the grant date, as proposed? Would the disclosure of these assumptions provide meaningful information to shareholders?
30. What concerns, if any, are presented if we require equity awards to be valued at vesting date fair value as opposed to grant date fair value? Would any concerns be mitigated by the inclusion in the table of the total compensation amount as provided in the Summary Compensation Table?
31. Should any other components of compensation, such as registrant contributions to defined contribution plans, also be included only after any applicable vesting conditions have been satisfied?
32. For equity awards that require exercise, is our proposal to consider them “actually paid” when vested the appropriate point in time for purposes of Item 402(v) disclosure? If not, please explain. Should we instead require that for an award that requires exercise to be considered “actually paid,” it must also be exercisable, making the valuation date the date on which the award is both vested and exercisable? Is there an alternative approach we should consider?
33. Are there other specific elements of compensation in the Summary Compensation Table that we should exclude or modify for purposes of the pay-versus-performance disclosure called for under proposed Item 402(v)?
We are proposing to require that registrants use TSR (as defined in Item 201(e) of Regulation S-K) as the measure of financial performance of the registrant for purposes of pay-versus-performance disclosure.
Several commenters in the pre-proposal stage indicated that absolute company performance may not be a sufficient basis for comparison and advocated disclosure of registrant performance relative to that of a peer group.
Requiring registrants to use a consistently calculated measure, such as TSR, should increase the comparability of pay-versus-performance disclosure across registrants. Using TSR also would provide a measure of financial performance that is objectively determinable from the share price of the registrant and not open to subjective determinations of performance. In addition, using a measure that registrants are already required to determine and disclose, and with which shareholders already are familiar, would reduce the burden of providing and analyzing pay-versus-performance disclosure as compared to requiring registrants to calculate and shareholders to review a new measure of financial performance.
Some commenters suggested permitting registrants to choose the performance measure best-suited for their company.
34. Should we require registrants to use TSR as the performance measure? Would the comparability across registrants resulting from this proposal benefit shareholders? Would prescribing the use of TSR hinder registrants from providing meaningful disclosure about the relationship between executive pay and financial performance? Would requiring the use of TSR result in shareholders or management focusing too much on this single measure of performance or emphasizing short-term stock price improvement over the creation of long-term shareholder value? If so, are there ways we could mitigate that risk?
35. Should we allow registrants flexibility in choosing the relevant measure of performance they are required to disclose? Besides TSR, what other measures of financial performance take into account any change in the value of the shares of stock and dividends and distributions of the registrant, as required by the statute? Are there metrics other than TSR that measure a company's performance and meet the requirements of the statute? If so, would they result in disclosures that are more or less meaningful than TSR? How is corporate performance measured today? How is this information incorporated into investment decisions?
36. If companies do not currently use TSR as a factor in determining executive compensation, could requiring disclosure of this relationship cause companies to change their compensation strategy to focus on this factor? If so, what would be the effect?
37. Does TSR, standing alone, provide sufficient information about a registrant's performance such that a registrant would provide only the information that would be mandated by this rule? Will registrants opt to provide additional information based on their own calculations or metrics to provide additional context for investors to consider the alignment of pay versus performance?
38. Should we permit voluntary use of other measures of performance in addition to TSR, as proposed? Should we instead include specific requirements relating to the use of alternative performance measures in the proposed rules?
39. Should we require disclosure of TSR on an absolute basis, as well as disclosure of peer group TSR, as proposed? Why or why not? Are there other parameters we should consider
40. Should we require disclosure about the registrant's selection of the peer group? For example, if a registrant using a peer group changes its peer group from one used in the previous fiscal year, should we require a brief narrative explaining the reasons for the change?
41. Our proposal requires a registrant to use the same peer group used for purposes of Item 201(e) or the CD&A. Should a registrant be permitted to choose between these two options, or should we prescribe which peer group should be used? Why or why not? Should a registrant be permitted to choose a peer group different from that used for purposes of Item 201(e) or its CD&A? Please explain. Should there be any restrictions on how registrants select their peer groups?
Section 14(i) does not specify the time period that the pay-versus-performance disclosure must cover. Several commenters expressed concern that meaningful pay-versus-performance disclosure would need to address the time periods over which pay and performance are evaluated.
For registrants other than smaller reporting companies, we are proposing to require registrants to provide the pay-versus-performance disclosure for the five most recently completed fiscal years.
Smaller reporting companies would be required to provide the disclosure for the three most recently completed fiscal years.
We are also proposing that a registrant provide pay-versus-performance disclosure only for years that it was a reporting company pursuant to Section 13(a) or Section 15(d) of the Exchange Act. Thus, a newly-reporting registrant would be required to provide pay-versus-performance disclosure for only the most recently ended fiscal year in any proxy statement or information statement in which executive compensation disclosure pursuant to Item 402 of Regulation S-K is required in its first year as a reporting company, and in the two most recently completed fiscal years in any proxy statement or information statement in which executive compensation disclosure pursuant to Item 402 of Regulation S-K is required in its second year as a reporting company. This treatment is consistent with the phase-in period for new reporting companies in their Summary Compensation Table disclosure.
42. Does a five-year disclosure period (for registrants other than smaller reporting companies) and a three-year disclosure period (for smaller reporting companies), as proposed, provide meaningful pay-versus-performance disclosure? Should the timeframes be shorter or longer? For example, should we require only three years of disclosure for all registrants consistent with the time period required by the Summary Compensation Table for registrants other than smaller reporting companies? What impact would a different time period have on the disclosure and its usefulness to shareholders?
43. Should we provide the proposed transition period for existing registrants? Why or why not? Should the transition period be shorter or longer? Does it depend on the type of registrant?
44. Should we permit registrants voluntarily to include fiscal years beyond the five-year period, as proposed? Please explain why or why not. Is there a risk that some registrants may choose the time period which is most favorable for performance? How could we mitigate this risk?
45. Is the proposed phase-in for new reporting companies appropriate? Is sufficient information readily available for these companies to provide adequate pay-versus-performance disclosure in any proxy statements or information statements requiring Item 402 disclosure in their first two years as a reporting company? If not, what are the costs of
46. Should the pay-versus-performance disclosure be required to use annual data from the five most recently completed fiscal years, as proposed, or aggregated data for the five most recently completed fiscal years? If the years are aggregated, should the relationship between pay and performance be demonstrated across peers because it can no longer be demonstrated over time? Alternatively, should the pay-versus-performance comparison be presented for both the last completed fiscal year and in aggregate for the five most recently completed fiscal years? If so, please explain why a different period and different level of aggregation than proposed would be more informative to shareholders or otherwise more appropriate.
47. Are there other transition issues or accommodations that we should consider? For example, should emerging growth companies
Exchange Act Section 14(i) requires a “clear description” of the compensation disclosure required by Item 402 of Regulation S-K. We believe the requirement in Item 402(a)(2) of Regulation S-K
48. Are there changes to our rules that are necessary or appropriate in order to give effect to the requirement in Section 14(i) of the Exchange Act for a clear description of the Item 402(v) compensation disclosure?
49. Is it appropriate to apply the Plain English principles to the pay-versus-performance disclosure? If not, please explain why.
As proposed, smaller reporting companies as defined in Item 10(f)(1) of Regulation S-K
• First, smaller reporting companies would be required to present Item 402(v) disclosure for the three most recently completed fiscal years, as opposed to the five most recently completed fiscal years required for other registrants. This is consistent with our general approach to scaling the requirements for executive compensation disclosure provided by smaller reporting companies.
• Second, smaller reporting companies would not be required to disclose amounts related to pensions for purposes of disclosing executive compensation actually paid because they are subject to scaled compensation disclosure that does not include pension plans.
• Finally, smaller reporting companies would not be required to present a peer group TSR. Smaller reporting companies are not subject to Item 201(e) and therefore are not otherwise required to present the TSR of a peer group, and they are not required to present a CD&A.
Smaller reporting companies are only required to provide Summary Compensation Table disclosure for the two most recently completed fiscal years. While the time period applicable for the proposed disclosure is longer than what smaller reporting companies currently are required to disclose in the Summary Compensation Table, we note that the information required to make the pay-versus-performance calculations for these additional years would be available in disclosures from prior years.
As proposed, smaller reporting companies would be required to provide the disclosure in the prescribed table in XBRL format, but we are proposing a phase-in under which smaller reporting companies would be required to provide the data in XBRL beginning with the third filing in which it provides pay-versus-performance disclosure.
We do not expect the compliance burden associated with providing this disclosure to be substantial given that much of the information required by the proposed rule is derived from information currently required under existing Regulation S-K. We also note that smaller reporting companies are subject to the say-on-pay advisory votes required under Exchange Act Rule 14a-21,
50. Would the proposed scaled disclosure requirements for smaller reporting companies provide meaningful disclosure to investors without imposing undue costs and burdens on these companies? Are there ways we could modify the proposed disclosure requirements to reduce the costs and still provide useful information for shareholders? For example, should we require only a two-year disclosure period for smaller reporting companies (similar to the timeframe for which they are required to provide disclosure in the Summary Compensation Table)?
51. Should we exempt smaller reporting companies from the proposed pay-versus-performance disclosure requirements? Why or why not? What impact, if any, would the absence of the proposed disclosure have on the ability of shareholders of smaller reporting companies to effectively exercise of their say-on-pay voting rights? Would shareholders be able to assess the relationship between the company's financial performance and the compensation paid absent the disclosure required under proposed Item 402(v)? Would the proposed disclosure be more or less meaningful to shareholders in the absence of CD&A and Item 201(e) performance graph disclosure? What are the burdens on smaller reporting companies of requiring pay-versus-performance disclosure and would the benefits of requiring this disclosure for smaller reporting companies justify the burdens? If not, please explain why not. Should registrants that exit smaller reporting company status be provided the same phase-in period applicable to other registrants when they first become subject to the proposed requirement to provide five fiscal years of pay-versus-performance disclosure?
We request and encourage any interested person to submit comments on any aspect of our proposals, other matters that might have an impact on the amendments, and any suggestions for additional changes. With respect to any comments, we note that they are of greatest assistance to our rulemaking initiative if accompanied by supporting data and analysis of the issues addressed in those comments and by alternatives to our proposals where appropriate.
In addition, we request data to quantify the costs and the value of the benefits described in this release. We seek estimates of these costs and benefits, as well as any costs and benefits not already defined, that may result from the adoption of these proposed amendments. We also request qualitative feedback on the nature of the benefits and costs we have identified and any benefits and costs we may have overlooked.
To assist in our consideration of these costs and benefits, we specifically request comment on the following:
52. Would there be any significant transition costs imposed on registrants as a result of the proposal, if adopted? Please be detailed and provide quantitative data or support, as practicable.
53. Have we struck the appropriate balance between prescribing rules to satisfy the requirements of Exchange Act Section 14(i) and allowing registrants to disclose pay-versus-performance information most relevant to shareholders?
54. Are there alternatives to the proposals we should consider that would satisfy the requirements of Section 14(i) of the Exchange Act?
As discussed above, Section 953(a) of the Dodd-Frank Act added Section 14(i) to the Exchange Act, directing the Commission to require registrants to disclose in any proxy or consent solicitation material for an annual meeting of the shareholders the relationship between executive compensation actually paid and the financial performance of the registrant. Section 14(i) of the Exchange Act does not define key terms, such as “executive compensation actually paid” or issuer “financial performance,” or prescribe a specific format for this disclosure. As a result, we apply discretion in our proposed implementation of the provision.
New Item 402(v) proposed by the Commission to satisfy the mandate of Section 14(i) requires the disclosure of information that is largely already required to be reported under current disclosure rules, but that is currently not computed or presented in the way the proposal would require. The proposal requires registrants to present the values of prescribed measures of executive compensation and performance for each of their five most recently completed fiscal years (three years for smaller reporting companies) in a standardized table. Registrants would be required to provide a clear description of the relationship between these measures, but would be allowed to choose the format used to present the relationship, such as a graph or narrative description. The proposal would also allow registrants to supplement the required elements of the disclosure with additional measures or additional years of data. The disclosure would be required to be provided in tagged data format using XBRL.
The proposed amendments would require that the compensation covered by the disclosure be “executive compensation actually paid.” Registrants would also be required to include the Summary Compensation Table measure of total compensation in the tabular disclosure for purposes of comparison. The proposal defines executive compensation actually paid as total compensation, as currently disclosed in the Summary Compensation Table, with modifications to the amounts disclosed
Specifically, we propose that, instead of the total change in actuarial pension value, executive compensation actually paid include only the actuarial present value of benefits attributable to services rendered during the applicable fiscal year. That is, the measure would exclude that part of the change in actuarial pension value that results from any change in the actuarial value of benefits accrued in previous years, and should thus increase the comparability between compensation provided through defined benefit and defined contribution plans. This adjustment is also expected to reduce the volatility in measured pension compensation caused by changes in interest rates and other actuarial assumptions, and should thus make it easier to evaluate the relationship of pay-versus-performance. Because the scaled compensation disclosure that applies to smaller reporting companies does not include pension plans, this adjustment would not be required of smaller reporting companies. We also propose that executive compensation actually paid include the values of equity awards at the time of vesting rather than the date they are granted. Using vesting-date valuations would result in a compensation measure that includes, upon the vesting date, the grant date value of equity awards plus or minus any change in the value of equity awards between the grant and vesting date. As discussed below, such changes in the value of equity awards after the grant date represent a direct channel, and one of the primary means, though which pay is linked to registrant performance. We therefore believe that it is important that such changes in the value of equity awards be reflected in the pay-versus-performance disclosure.
All of the individual components needed to calculate executive compensation actually paid must already be reported under current disclosure rules, with the exception of the values to be included with respect to pension benefits and option awards. The actuarial present value of pension benefits of an individual NEO attributable to services rendered during the applicable fiscal year is not currently required to be reported but can be estimated by shareholders based on existing disclosures with respect to pension benefits and pension valuation assumptions. The vesting-date values of option awards can similarly be estimated by shareholders using existing disclosures regarding the terms of option awards, their grant-date values and grant-date valuation assumptions, but arriving at such estimates could require shareholders to make vesting-date valuation assumptions that could differ from the grant-date valuation assumptions. The disclosure of executive compensation actually paid may therefore provide shareholders with marginal new information about the particular assumptions made by registrants in estimating vesting-date valuations.
The proposed amendments would require TSR to be the measure of financial performance used for the pay-versus-performance disclosure. Registrants other than smaller reporting companies would be required to include the TSR for a peer group as well as the registrants' own TSR in the required table. Registrants would also be required to provide a description of the relationship of their own TSR with executive compensation actually paid and, for registrants other than smaller reporting companies, of their own TSR with the reported peer group TSR. For this purpose, registrants may use the peer group used for their Item 201(e) performance graph in their annual report or the peer group used in their CD&A, if any.
The proposed amendments would permit registrants to present supplemental measures of both performance and compensation. Also, the proposed amendments would not prescribe the format in which the relationship between executive compensation actually paid and TSR is presented, though the amendment would require that the disclosure present this relationship over the five prior fiscal years (three years for smaller reporting companies). The proposal would also require footnote disclosure of the adjustments made to compute executive compensation actually paid and disclosure of the vesting date valuation assumptions, if materially different from the grant date assumptions.
We are proposing these amendments to satisfy the statutory mandate of Section 14(i) of the Exchange Act. The Senate Report that accompanied the statute references shareholder interest in the relationship between executive pay and performance as well as the general benefits of transparency of executive pay practices.
Exchange Act Section 3(f) requires us, when engaging in rulemaking that requires us to consider or determine whether an action is necessary or appropriate in the public interest, to consider, in addition to the protection of shareholders, whether the action will promote efficiency, competition and capital formation. Exchange Act Section 23(a)(2) requires us, when adopting rules under the Exchange Act, to consider the impact that any new rule would have on competition and not to adopt any rule that would impose a burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act.
The discussion below addresses the economic effects of the proposed amendments, including its anticipated costs and benefits, as well as the likely effects of the proposed amendment on efficiency, competition, and capital formation. The proposed amendments reflect the statutory mandate in Section 14(i) as well as the discretion we exercise in implementing that mandate. For purposes of this economic analysis, we address the costs and benefits resulting from the statutory mandate and from our exercise of discretion together, recognizing that it is difficult to separate the costs and benefits arising from these two sources. We also analyze the potential costs and benefits of significant alternatives to what is proposed. We request comment throughout this release on alternative means of meeting the statutory mandate of Section 14(i) of the Exchange Act and on all aspects of the costs and benefits of the proposed approach and of possible alternatives. We also request comment on any effect the proposed disclosure requirements may have on efficiency, competition and capital formation.
To assess the economic impact of the proposed amendments, we are using as our baseline the current state of the market without a requirement for registrants to disclose the relationship between executive compensation actually paid and the financial performance of the registrant. We consider the impact of the proposed amendment on shareholders, registrants, and their NEOs. The proposed amendments would apply to all companies that are registered under Section 12 of the Exchange Act and are therefore subject to the federal proxy rules, except emerging growth companies. The proposed amendments would also not apply to foreign private issuers or companies with reporting obligations only under Section 15(d) of the Exchange Act, which are not subject to the proxy rules. In addition, for some Section 12(g) registrants, such as limited partnerships, the disclosure requirement might not apply in some or all years because these registrants might not file either proxy or information statements every year.
We estimate that approximately 6,075 registrants would be subject to the proposed amendments, including approximately 2,430 smaller reporting companies.
The economic effects of pay-versus-performance disclosure will depend, in part, on whether new information that could not be derived from existing disclosures would be made available to shareholders. The proposed amendments are not expected to result in the provision of significant new information to shareholders, or to require registrants to collect significant new data, relative to disclosure requirements under the baseline. The registrants that would be subject to the proposed amendments must currently comply with Item 402 of Regulation S-K and, except in the case of smaller reporting companies, with Item 201(e). The underlying information required to provide the proposed pay-versus-performance disclosure is, with the exception of vesting-date valuation assumptions for options, already encompassed by these existing disclosure requirements and, for smaller reporting companies and for registrants that use a peer group from their CD&A, in the public availability of stock return data.
Specifically, Item 201(e) requires the disclosure of the TSR for the registrant as well as a peer group (a published industry or line-of-business index, peer issuers selected by the registrant, or issuers with similar market capitalizations), for the past five years, in annual reports.
Further, Item 402 currently requires the affected registrants to disclose extensive information about the compensation of NEOs. For example, registrants subject to Item 402 are required to report the value of total compensation and each of its components,
Specifically, the proposed definition of executive compensation actually paid for a fiscal year is total compensation as reported in the Summary Compensation Table for that year (i) less the change in the actuarial present value of pension benefits,
Thus, under the baseline, shareholders already have the required data to compute a reasonable estimate of the proposed measure of executive compensation actually paid, even though registrants are not required to compute or disclose this measure. In particular, as discussed above, the actuarial present value of benefits attributable to services rendered during the applicable fiscal year can be computed using the detailed existing disclosures of pension plan terms and valuation assumptions. It is also possible for shareholders to make reasonable estimates of the vesting-date fair values of options based on existing compensation disclosures and public data. However, as discussed above, estimates of vesting-date valuations computed by shareholders could differ from estimates computed by the registrant. Under the baseline, because registrants are not currently required to disclose vesting-date valuation assumptions (which may differ from grant-date assumptions), shareholders may not know how the registrant would apply its discretion in choosing from a range of reasonable assumptions to compute vesting-date valuations.
For the affected registrants other than smaller reporting companies, Item 402 also requires a description in the CD&A of how the registrant's compensation policy relates pay to performance, if material to the registrant's compensation policies and decisions. However, registrants are not currently required to report the actual historical relationship between any measures of compensation and financial performance. Some registrants voluntarily provide such disclosures, which are generally limited to analyses of the compensation of the PEO and which vary with regard to the compensation and performance measures used.
Certain shareholders also may have access to analyses of historical pay-versus-performance data produced by third parties, such as proxy advisory firms and compensation consultants. These analyses are based on compensation and performance information disclosed by registrants, and they may apply more consistent methodologies across registrants, but the computations and analytical approaches used vary across the third-party information providers.
An important factor to consider when analyzing the effects of the proposed pay-versus-performance disclosure requirements is the variation in compensation structures that is likely to exist among the affected registrants. In particular, because the proposed amendments require that equity awards and compensation related to pension plans be valued differently, and (in the case of equity awards) in different years than as valued in the Summary Compensation Table, the variation in usage and design of these items in executive compensation packages may affect the comparability of the disclosures and the burden involved in making the required calculations to provide the disclosures.
The proposed amendments require that executive compensation actually paid include the vesting-date values of stock grants, which are provided in the Option Exercises and Stock Vested Table but likely differ from the grant date values included in total compensation in the Summary Compensation Table. The use of stock grants, and the frequency of such grants to the CEO, by some of the potentially affected registrants is reported in the table below.
The proposed amendments require that executive compensation actually paid include the vesting-date values of option grants, values that are not currently reported and likely differ from the grant date values included in total compensation in the Summary Compensation Table. The use of option grants, and the frequency of such grants to the CEO, by some of the potentially affected registrants is reported in the table below.
In addition,
A compensation research and services firm estimates that 34% of stock grants and 6.8% of option grants awarded by S&P 1500 firms in 2012 are scheduled to vest in full at the end of their vesting period (“cliff vesting”) while the remaining are scheduled to vest in increments over the period of vesting (“graded vesting”).
Another component of compensation that is measured differently in the proposed definition of executive compensation actually paid as compared to total compensation in the Summary Compensation Table is, for the affected registrants other than smaller reporting companies, compensation related to pension plans. The use of pension plans and the years of credited service at some of the potentially affected registrants are reported in the table below.
For the affected registrants other than smaller reporting companies, the proposed amendments require that executive compensation actually paid include only the actuarial present value of benefits attributable to services rendered during the applicable fiscal year, a value which is not currently required to be reported and will usually differ from the total change in actuarial value of pension benefits included, if positive, in total compensation reported in the Summary Compensation Table. In particular, the value currently included in total compensation reflects the change in actuarial pension value related to changes in the value of benefits accrued in prior years as well as the value of benefits attributable to services rendered during the applicable fiscal year. As such, the value currently included with respect to pensions in total compensation reported in the Summary Compensation Table will generally be more volatile (because of changes in interest rates and other actuarial assumptions) than the value to be included with respect to pensions in the proposed executive compensation actually paid measure. The degree of difference between these two computations will generally increase with an executive's total number of years of credited service (and thus the extent of benefits already accumulated) under the pension plan.
Compensating executive officers with pay that varies with registrant performance is widely considered to be a tool that can be used to encourage executive officers, through the financial incentives provided by such compensation plans, to exert effort and make decisions that create value. However, there are also downsides of such compensation plans. For example, some such plans may cause executives to focus overly on short-term performance to the detriment of long-term performance, or may make some executives less likely to take on risky but (from a typical shareholder's perspective) valuable investments if they are unwilling to take the chance that the investment could fail and result in lower compensation than would result from less risky projects.
An optimal compensation policy is generally considered to be one that maximizes shareholder value in the long term by balancing the need to provide executives with the incentive to perform well against the monetary costs and potential detrimental effects of the compensation policy. What constitutes an optimal compensation policy, including which performance metrics should be considered and how much compensation should vary with these metrics, is difficult to ascertain and will vary with a registrant's individual circumstances. Academic research has been mixed as to whether prevailing compensation structures are optimal, are too closely linked to company performance, or should be more sensitive to performance.
In addition to uncertainties about the optimality of pay-versus-performance alignment, there are challenges in measuring such alignment. For example, the available performance statistics may not adequately measure a given executive's contribution to a registrant's performance, such as when registrant performance is strongly related to market moves, sector opportunities, commodity prices, or other factors unrelated to managerial effort or skill.
Despite these challenges, shareholders may evaluate executive compensation packages and consider the optimality of pay-versus-performance alignment when making voting decisions relating to the compensation of the NEOs and the election of directors, as well as when making investment decisions.
The proposed amendments mainly require registrants to repackage in one location information that is disclosed in various other locations under existing rules. The anticipated benefits and costs of the proposed amendments are therefore driven by the impact that this additional format for presenting information may have on shareholders. The economic benefits and costs of the proposed amendments, including impacts on efficiency, competition and capital formation, are discussed below. We also discuss the relative benefits and costs of significant, reasonable implementation alternatives to the amendments as proposed.
As discussed above, for the most part, the proposed amendments require a different presentation of certain existing information rather than the disclosure of new information. The primary benefits of the proposed amendments relative to the baseline will therefore depend on the extent to which the computations provided or the format used for the proposed disclosure is useful to shareholders.
Shareholders may benefit from the proposed amendments to the extent that the new presentation of data required by these amendments lowers their burden of analysis in evaluating the executive compensation policies of the affected registrants. Shareholders may evaluate executive compensation when making decisions relating to the say-on-pay vote and other votes relating to the compensation of the NEOs and the election of directors, as well as when making investment decisions. As part of this process, shareholders likely spend time and other resources to analyze current disclosures, including making computations that enable them to understand how compensation is related to performance. Existing disclosures regarding compensation are quite detailed, often lengthy, and, in some portions, subject to considerable variation. If the repackaging of some of this information into the required pay-versus-performance disclosure allows shareholders to more quickly or easily process the information accurately, the proposed amendments may generate efficiencies by preventing duplicative analytical effort by shareholders. Also, requiring that the disclosure be provided in a tagged data format may facilitate the extraction and analysis of any or all of this information across a large number of registrants or, eventually, across a large number of years. If the proposed disclosure is of interest to shareholders, it may be particularly beneficial to those shareholders who do not have access to third-party analyses, have fewer analytical resources, or are less adept at interpreting current disclosures on their own. If the disclosure helps shareholders process and understand compensation data faster, this information may also be more quickly incorporated in market prices, marginally increasing the informational efficiency of markets.
The size of this potential benefit depends on the extent to which the proposed disclosure approximates or contributes to any of the calculations and analyses that sophisticated shareholders would choose to perform on their own in order to process the existing disclosures, which is difficult to ascertain. The proposed requirement that registrants use standardized measures of compensation and performance would likely increase the comparability of disclosures specifically addressing the relationship of pay and performance relative to the broad variability under the baseline in the narrative discussion that may be provided in the CD&A and in voluntary pay-versus-performance disclosures.
To the extent that shareholders are interested in the prescribed measures, this enhanced comparability would likely enable more efficient processing of the information. In particular, standardization should reduce the time that shareholders would spend to learn what different measures represent: For example, once they understand what executive compensation actually paid reflects, they can understand what that measure means in other pay-versus-performance disclosures without having to examine each registrant's own
As noted above, these benefits of standardization would apply only to the extent that shareholders find the prescribed measures to be useful. Whether or not shareholders will be interested in the prescribed measures is unclear. For example, as discussed above, there are challenges associated with measuring an executive's contribution to registrant performance that may lead to concerns with any performance measure. However, TSR reflects information from a variety of underlying performance metrics, including market expectations of the future impact of current executive actions, and may thus be a useful metric in this context. While a registrant's own TSR as well as relative performance information will generally be available in Item 201(e) disclosures in annual reports for registrants other than smaller reporting companies, including peer performance in the pay-versus-performance disclosure may be useful to shareholders as it would enable them to evaluate the performance of a registrant relative to peers without requiring shareholders to refer to other disclosure documents.
Similarly, while the prescribed compensation measure would provide little incremental information beyond existing disclosures, the measure would reflect new required computations based on this existing data that may be particularly relevant in the context of evaluating the relationship of pay-versus-performance. These computations, and the tagging of the disclosure, may make information of interest to shareholders more readily available than it is under the baseline. For example, shareholders may be interested in the vesting-date valuations of options because academic studies indicate that changes in the value of equity awards after the grant date are a primary channel though which pay is linked to registrant performance.
In addition, some shareholders may be interested in computing slightly different measures or using parts of the required computations for other purposes, in which case they are likely to benefit from the proposed footnote disclosure of the adjustments made to compute executive compensation actually paid and the disclosure of vesting date valuation assumptions, if materially different from the grant date assumptions. Also, as discussed above, requiring that the disclosure be provided in tagged data format may benefit shareholders interested in extracting and analyzing some or all of the data in the disclosure across a large number of filings.
On the other hand, if the prescribed measure of executive compensation actually paid is significantly different from measures that shareholders would choose to construct on their own in order to evaluate compensation alignment, benefits may be limited and some shareholders may be confused by the disclosures, as discussed in more detail below. For example, the potential benefit of more efficient data processing is likely to be tempered by the fact that the proposed measure of executive compensation actually paid may be subject to substantial potential volatility due to its sensitivity to equity award vesting schedules, which may reduce the meaningfulness of relating the variation in the measure over time to stock price performance. Also, while tabular disclosure of the underlying data will provide some degree of comparability, benefits to shareholders may be either mitigated or enhanced by the proposed latitude in format for presenting the relationship between the prescribed pay and performance measures. The impact of this flexibility depends on whether the usefulness of more customized formats outweighs any added complexity in interpreting the disclosure and the reduction in comparability across registrants.
The proposed amendments could also have indirect benefits if the required disclosures lead to more optimal compensation policies, perhaps as a result of increased attention on the level or structure of NEO compensation and/or registrant performance. Specifically, if, by virtue of the disclosure, NEOs become less likely to demand, and/or boards become less likely to approve, a compensation level or structure that is not optimal (in that, as discussed above, it does not maximize long-term shareholder value),
The likelihood of such indirect effects is difficult to estimate because the ideal pay-versus-performance analysis for shareholders, as well as the optimal pay structure, is uncertain and may vary by company, and because reactions to the repackaging of information are difficult to predict. As discussed above, the proposed disclosure is intended to facilitate shareholders' consideration of the alignment between pay and performance when making related voting decisions. However, because the proposal does not require the disclosure of significant new information, and given high levels of existing attention to pay practices, we believe that it is unlikely that the proposed amendments
We believe that the only incremental information that the required disclosures under the proposed amendments would provide relative to existing public information is related to the calculation of option values as of the vesting date instead of the grant date. Registrants are also not currently required to disclose the actuarial present value of benefits attributable to services rendered during the applicable year, but they must disclose the pension plan terms and assumptions that could be used to compute this value. In contrast, while the valuation of options also involves certain assumptions, registrants are not currently required to disclose vesting-date valuation assumptions for option grants.
Using existing disclosures, shareholders can themselves make estimates of the vesting-date values based on the disclosed option terms, by using publicly available data to make reasonable valuation assumptions.
We believe that the costs to registrants of complying with the proposed amendments likely would be relatively low, given that the required disclosures do not require the collection of any significant new information relative to the baseline and the required additional computations are straightforward. The valuation of options as of a different date and the required computations with respect to pension plans can be accomplished by entering new inputs into the existing valuation models used to calculate currently disclosed values. These costs will also be limited by phasing in the time periods for the disclosure for both new and existing registrants, thereby reducing the computations required when first producing the disclosure, and phasing in the tagging requirement for smaller reporting companies. The primary costs of complying with the proposed amendments include the time and expense to make the required computations, to design and apply a format for the disclosure, to apply XBRL data tagging, and to ensure appropriate review, such as by management, in-house counsel, outside counsel and members of the board of directors. As discussed above, registrants would be required to file the pay-versus-performance disclosure in certain proxy or information statements. While much of the disclosure would be based on information that is otherwise disclosed, the new computations and new presentation of this underlying information, as well as the inclusion of existing measures—TSR and peer group TSR—that are otherwise “furnished” but not “filed,” may create an incremental risk of litigation under Section 18 of the Exchange Act. However, we note that Section 18 does not create strict liability for “filed” information.
The compliance costs are likely to vary somewhat among registrants depending on the complexity of their compensation structures. For example, the computation of executive compensation actually paid from total compensation reported in the Summary Compensation Table involves adjustments to the treatment of equity awards and pension benefits. As shown in the baseline section above, while a relatively higher proportion of large companies have pension plans and grant stock and option awards to executives, a significant fraction of mid-sized and smaller companies feature these components in their compensation plans as well. Thus, while the compliance costs are likely to be low, these costs may be slightly more burdensome for those affected registrants which have complex compensation packages and are small enough that the costs of the disclosure are relatively more consequential in comparison to their size. Smaller reporting companies would be subject to scaled requirements consistent with their existing disclosure requirements, including fewer years of disclosure, no requirement to report peer group performance, and the exclusion of items related to pension plans in computing executive compensation actually paid. Smaller reporting companies are not currently required to comply with Item 201(e), so they may face a small incremental burden of computing their own TSR for the purpose of this disclosure as compared to other affected registrants.
Based on analysis for purposes of the Paperwork Reduction Act (“PRA”), as discussed in Section V of this release, we estimate that the total incremental burden on all registrants of the proposed amendments would be, annually, 67,500 hours for internal company time, and $9,000,000 for the services of outside professionals. Certain registrants—such as those that have infrequent equity grant vesting dates or other compensation structures that result in a more volatile measure of executive compensation actually paid—may be more likely to voluntarily supplement the disclosure with additional measures, explanations, or analyses in order to explain the patterns in the required disclosure, and may thus face higher overall costs. However, we do not believe that any of the variation in the compliance burden will be large enough to have a material detrimental effect on competition or capital formation.
Shareholders may bear additional information processing costs as a consequence of the proposed amendments if they increase the length and complexity of existing disclosures without significantly adding to the ease of interpretation. The likelihood and extent of such costs may be a function of the potential confusion resulting from the proposed disclosure, as discussed in more detail below, and the related increase in supplementary disclosures that may result, as well as the complexity of and variation in presentation formats, as discussed above. If the proposed disclosure were to confuse rather than help shareholders and therefore complicate the task of understanding executive pay policies, it may marginally decrease the informational efficiency of markets.
The proposed amendments may confuse shareholders about the optimality of pay practices if it brings attention to a particular relationship that may not be meaningful in the context of a given registrant. As discussed above, there are challenges in measuring pay-versus-performance alignment which are likely to impact any standardized approach to presenting this relationship. Including peer group performance in the disclosure may help shareholders to identify when registrant performance could be driven by market moves, sector opportunities, commodity prices, or other factors unrelated to managerial effort or skill. However, the proposed disclosure may be less meaningful if the disclosed performance, even relative to peers, is different from the contribution of the given NEO to performance, or if the disclosed relationship between compensation and performance does not (because of timing considerations or vested equity holdings) accurately capture the economic relationship between the company's performance and the financial rewards to the NEO.
In addition to the general concerns raised above, the proposed definition of executive compensation actually paid may be particularly subject to volatility based on the vesting pattern of equity awards, because the measure includes in the year of vesting the original grant-date value and all gains (or losses) related to returns in all years since the grant was made. In particular, the proposed measure is likely to increase sharply in any year during which significant equity awards vest, and gains or losses on equity awards are likely to be reflected in different years than the stock performance that generated them. Such volatility could make it difficult to understand the relationship, or lead to incorrect inferences about the relationship, between pay and performance.
The treatment of equity awards may also reduce the comparability of the compensation measure across registrants. The exclusion of grant date values in the year of grant may make it difficult to compare the total value of compensation packages. For example, for a given fiscal year, if one PEO is paid $1 million in cash and another PEO is paid $1 million in restricted stock that vests after one year, the executive compensation actually paid for the year will be $1 million in the first case and zero in the second case. This measure would be accompanied in the proposed tabular disclosure by the Summary Compensation Table measure of total compensation, which reflects the grant date values of equity awards, and may thus contribute to a more complete view of a compensation package. However, the reduced comparability resulting from the exclusion of the grant date values of equity awards from the proposed measure may still complicate the task of interpreting the disclosure.
The sensitivity of the proposed measure of executive compensation actually paid to vesting schedules may also reduce comparability. For example, consider two NEOs who are granted large, one-time awards of restricted stock that vest in full after one year, but with vesting dates that are one day apart—on the last day of a fiscal year versus the first day of the next fiscal year. The pattern in compensation actually paid may look very different for these two executives because the award of stock will be reflected in different years.
The potential for confusion is particularly of concern given that the proposed disclosure may be of most interest to less sophisticated shareholders, who may be less likely to have access to third-party pay-versus-performance analyses or may be less adept at conducting their own such analyses. The possibility of confusion is mitigated by allowing registrants to provide supplemental measures of pay and performance in the proposed disclosure, as well as the ability of registrants to provide further explanatory disclosures (such as in the CD&A for affected registrants other than smaller reporting companies). However, such clarifying disclosures may be more likely to be provided when the proposed disclosure is perceived by the registrant to incorrectly indicate the misalignment of pay and performance than when the proposed disclosure is perceived to incorrectly indicate strong alignment.
The proposed amendments could also lead to indirect costs if the required disclosures lead to changes in compensation packages that are not beneficial. Registrants may make changes to avoid disclosure that they perceived to correctly or, because of the limitations of the standardized approach, incorrectly indicate the misalignment of pay-versus-performance. For example, by virtue of the disclosure, boards may become more likely to approve compensation structures that more strongly link pay to stock price performance, even in situations in which this would not be optimal.
As in the case of the potential benefits outlined above, many of these costs are difficult to quantify because the ideal pay-versus-performance analysis for shareholders, as well as the optimal pay structure, is uncertain and may vary by company and because reactions to the repackaging of information are difficult to predict. Still, because the proposal does not require the disclosure of significant new information, and given high levels of existing attention to pay practices, we believe that it is unlikely that the proposed amendments would play a significant role in encouraging poor pay practices. We therefore believe that the proposed amendments likely would have no material detrimental effects on competition or capital formation.
In this section, we present significant implementation alternatives that have been considered and a discussion of their benefits and costs relative to the amendments as proposed.
An alternative to the amendments as proposed would be to require that pay-versus-performance disclosure would accompany any Item 402 disclosure, including in Form 10-K or Form S-1. Such an approach would make pay-versus-performance disclosures more consistently available for Section 12(g) registrants subject to the amendments and broaden the disclosure requirement to include Section 15(d) registrants other than emerging growth companies. As discussed above, we believe that the proposed disclosure would be most useful to shareholders when they are deciding whether to approve the compensation of the NEOs through the say-on-pay vote, voting on the election of directors or acting on a compensation plan. The proposed approach would require pay-versus-performance disclosure in proxy statements in each of these cases. Nonetheless, shareholders making voting decisions at a particular registrant may benefit from broader and more consistent availability of pay-versus-performance disclosures on an annual basis at other registrants. Specifically, these disclosures may allow shareholders to more easily compare pay practices across registrants when deciding how to vote at a particular registrant, particularly, for example, in the case of smaller companies whose peers may be more likely to be Section 12(g) or Section 15(d) registrants. Such disclosures may also be of use to some shareholders in making investment decisions, irrespective of any matters that are up for a vote.
However, registrants with reporting obligations only under Section 12(g) or Section 15(d) do not have securities that are registered on national securities exchanges, so the markets for their shares are likely to be comparatively less liquid. Estimates of share values and therefore of total shareholder return for such registrants may be less precise and less readily available, potentially making pay-versus-performance comparisons based on this metric less meaningful across such registrants. Also, as in the case of smaller reporting companies, Section 15(d) registrants are not subject to Item 201(e) requirements for stock price performance disclosure. Similarly, Section 12(g) registrants may not be required to disclose Item 201(e) information in some or all years, so Section 15(d) registrants and some Section 12(g) registrants would bear an additional burden of calculating their own TSR and, except in the case of smaller reporting companies, the TSR of a peer group for this purpose.
An alternative that would narrow the applicability of the disclosure would be to exempt smaller reporting companies from the proposed disclosure requirement. Exempting smaller reporting companies generally would be consistent with the overall scaled disclosure requirements that apply to smaller reporting companies. While the proposal would subject smaller reporting companies to scaled requirements in order to limit the incremental burdens such companies may face relative to other registrants, some such burdens remain. For example, smaller reporting companies are currently not required to disclose their TSR in annual reports, so they would face a higher burden than other registrants to include this measure in the pay-versus-performance disclosure. We note, also, that requiring only a scaled version of the pay-versus-performance disclosure for smaller reporting companies may limit the benefits to shareholders by reducing the content and comparability of the disclosures. Also, in the absence of CD&A disclosure, shareholders would have less information with which to interpret pay-versus-performance disclosures from these registrants.
On the other hand, it is possible that some shareholders may benefit from the proposed pay-versus-performance disclosure for these registrants, particularly because these registrants currently provide less extensive disclosure about compensation and the data that they do disclose is unlikely to be available in aggregate form from data vendors that collect such data from the proxy statements of larger companies. For example, shareholders who believe that the long-term performance of younger, high growth companies may be particularly sensitive to the design of compensation structures may benefit from smaller reporting company pay-versus-performance disclosures, even if these disclosures are not directly comparable with the disclosures of other affected registrants. Shareholders that are interested in comparing executive compensation across smaller reporting companies would benefit from this data being tagged, particularly because of the lack of commercial databases collecting executive compensation information for such registrants. The proposal would permit smaller reporting companies to present fewer years of information in the disclosure, to not include peer group performance, and to exclude items related to pension plans in computing executive compensation actually paid. While the scaled requirements for smaller reporting companies may limit the potential benefits to shareholders interested in executive compensation at such registrants, these scaled requirements should substantially limit the incremental burdens faced by smaller reporting companies in providing pay-versus-performance disclosure.
We have considered several reasonable alternatives to the proposed disclosure requirements.
Some commenters recommended a more principles-based approach that would permit registrants to determine which measures of pay and performance to disclose and how to disclose the relationship between these measures based on what they deem to be appropriate for their individual situations.
In particular, the proposed disclosure promotes a level of comparability by requiring standardized measures of compensation and performance that are consistent across registrants. Similarly, the proposed requirement that the disclosure cover, at minimum, a five-year (three-year for smaller reporting companies) time period after the initial phase-in should also increase the comparability and usefulness of the disclosure compared with the alternative of allowing the registrant to potentially choose a shorter time period for disclosure. Registrants will be permitted to present supplemental measures of compensation and performance and additional years of data in the pay-versus-performance disclosure, will have flexibility as to the format in which to present the relationship between pay and performance, and will continue to have significant latitude in presenting additional compensation analyses (such as in the CD&A, for affected registrants other than smaller reporting companies), all of which should help registrants to clarify their unique circumstances and considerations in evaluating compensation.
Conversely, we also have considered increasing the comparability of pay-versus-performance disclosures by prescribing a uniform format or some minimum requirements for the presentation format of the relationship. Under the proposal, registrants may apply a wide range of formats when presenting the relationship between the measures that might not be directly comparable, particularly as some registrants may present the relationship between the prescribed measures using percentage changes or ratios while others may present the levels of these measures. However, the tabular disclosure of the annual values of executive compensation actually paid and registrant and peer group performance should allow shareholders to compare the content of the disclosures across registrants using different formats. Still, shareholders' ability to easily compare the disclosure across registrants may be further increased by requiring a uniform format for presenting the relationship, such as a standardized graphical presentation, or some minimum standards for the presentation format, such as a requirement that the disclosure be in the form of a graph. The cost of these more prescriptive approaches would be the restrictions on the ability of registrants to tailor the format of the required disclosures to best reflect their individual circumstances, which may vary significantly.
A further alternative would be to require registrants to provide an analysis of the presented information in narrative accompanying the factual disclosure. For example, registrants could be required to explain which compensation decisions or which elements of compensation, if any, were most responsible for the patterns in the presented relationship between executive compensation actually paid and total shareholder return. Such supplementary analysis may help shareholders to interpret the disclosures, particularly in cases where, as discussed above, the presented relationship may be distorted by issues such as timing mismatches and factors unrelated to managerial performance that may affect stock prices. The proposed amendments permit such explanations to be provided on a voluntary basis but, as discussed above, such clarifying disclosures may be more likely to be provided when the proposed disclosure is perceived by the registrant to incorrectly indicate the misalignment of pay and performance than when the proposed disclosure is perceived to incorrectly indicate strong alignment. However, making the provision of such narrative disclosure mandatory may increase the compliance burden and might suggest that the registrant considered, or should consider, the pay-versus-performance relationship in its compensation decisions.
We have also considered increasing or decreasing the minimum information required to be included in the disclosures. With respect to increasing the minimum information, we considered requiring the inclusion of additional measures of pay or performance or requiring that the disclosure cover a longer time period. Shareholders may find expanded disclosures to be beneficial. For example, a longer time period (
However, such extended requirements would impose a higher compliance burden while potentially requiring registrants to include information that they do not believe to be relevant to their circumstances, and/or which shareholders may not find to be relevant. Also, requiring additional measures may also make the disclosure of the relationship between pay and performance more difficult to process quickly, while not adding to the total amount of underlying information available to shareholders from public disclosures.
With respect to decreasing the minimum required information, we also considered reducing the required disclosure period to three years, excluding Summary Compensation Table total compensation from the required tabular disclosure, or not requiring TSR for a peer group. On the one hand, these alternatives could reduce the compliance burden on registrants by limiting the total amount of information that would need to be included in pay-versus-performance disclosures, while continuing to provide flexibility to registrants to include additional information if they find it to be appropriate. On the other hand, decreasing the minimum required information could reduce the benefits to shareholders discussed above and may not substantially reduce compliance costs given that, for example, the excluded information would generally still be required to be disclosed in other years, other parts of the proxy or information statement, or other filings. Overall, we believe that the proposed minimum required information appropriately balances a level of comparability and usefulness against the costs of complying with the requirements of pay-versus-performance disclosure.
One commenter
Requiring peer performance but not peer compensation information as in the proposal should help shareholders to understand when registrant performance could be driven by market moves, sector opportunities, commodity prices, or other factors unrelated to managerial effort or skill. Under the proposed amendments, registrants that prefer to include information about peer pay-versus-performance will be permitted to present relative measures of pay and alternative measures of relative performance as additional measures in the pay-versus-performance disclosure and will continue to have the ability to present relative compensation analyses in the CD&A. Because registrants might only choose to present this information when they perceive the comparison to peers to appear favorable, allowing such voluntary disclosure would not provide the full benefits of mandating relative pay-versus-performance disclosure. However, shareholders could also construct relative pay-versus-performance analyses on their own by comparing the separate pay-versus-performance disclosures of each of a registrant's peers, based on the peer group reported by a registrant under Item 201(e) or in the CD&A.
Another commenter recommended that the pay-versus-performance disclosure be limited to the PEO's compensation.
We could require pay-versus-performance disclosure for each individual NEO, rather than or in addition to the average of the other NEOs as a group. Disclosure with respect to the individual NEOs could be required only in the required tabular disclosure of the prescribed measures or in both the disclosure of these measures and in the disclosure of the relationship between the measures. Such approaches would allow shareholders to more directly compare pay-versus-performance for NEOs with the same or similar titles across different registrants. Also, some shareholders may be interested in the pay-versus-performance alignment of particular NEOs other than the PEO and would thus benefit from such individual disclosures. Since the computations required to produce individual disclosures would already be made in order to produce disclosure on an average basis for all of the NEOs, the incremental burden of producing such individual disclosures may be low.
However, while some shareholders may be interested in such disclosure, variability in the composition and number of other NEOs over the horizon of the disclosure may complicate the interpretation of the relationship between pay and performance over the years for which disclosure is required. The roles of individual NEOs might not be comparable, and their titles might not be consistent, across registrants, limiting the benefits to shareholders interested in comparing pay alignment for particular roles across registrants. Also, firm-level performance measures may be less likely to adequately measure an NEO's contribution to a registrant's performance than that of the PEO, given the more focused roles (such as division head or chief technology officer, among many other possibilities) of individual NEOs, so individual disclosures for the NEOs could be of limited benefit in many cases. Because of these limitations, and the increase in the length and complexity of the disclosure required to present individual NEO information, requiring pay-versus-performance disclosures for each individual NEO could increase the time required for a shareholder to analyze and process the information and increase the likelihood of shareholder confusion.
We are proposing to require XBRL tagging of the disclosure because some shareholders may be interested in extracting and analyzing the information in the table across large numbers of registrants or, eventually, a large number of years, and would thus benefit from the proposed tagging requirement.
The affected registrants are familiar with data tagging because they are required to provide information in other filings in interactive data format, but the exact specifications differ and they are not required to provide any interactive data in proxy or information statements.
We considered not requiring registrants to tag, as a block, the graphical and/or narrative disclosure that would follow the tabular disclosure. While the nature and potential variation in format of this disclosure may make it less suitable for large-scale analysis than the numerical data required to be tagged under the proposal, the incremental costs of tagging this disclosure as block-text should be low and such tagging could benefit shareholders interested in extracting this part of the disclosure from a large number of filings. We also considered not requiring registrants to tag, as blocks, the disclosures of deductions and additions used to determine executive compensation actually paid and the disclosure regarding vesting date valuation assumptions. The cost of block tagging these disclosures should be low and shareholders interested in this information may find such tagging to be useful. Alternatively, we could require that each numerical item in the deductions and additions used to determine executive compensation actually paid and the vesting date valuation assumptions be tagged separately. While such tagging may benefit shareholders interested in using this data, it would require some incremental compliance costs. Another alternative would be to allow registrants to tag any supplemental measures of pay and performance that they include in the disclosure beyond the prescribed measures. While some shareholders may benefit from such tagging, the supplemental measures included, if any, are likely to vary across registrants and such data may thus be less suitable for large-scale analysis than the prescribed measures.
We also considered requiring registrants to provide the data in XML format rather than XBRL. An XML format could be appropriate given the fixed structure of the proposed tabular disclosure and would permit the use of existing EDGAR applications that can convert submitted information to XML. This could increase the ease with which registrants could implement the structured formatting requirement, and could thus reduce costs, particularly for smaller registrants. However, XBRL is more appropriate for capturing information that is not well suited for tabular disclosures; in particular, standard XML is not able to tag large blocks of information without customization, whereas this function is standard in XBRL. XBRL is therefore more suitable for implementing the proposed requirements for block tags. In determining to propose a requirement to tag the data in XBRL format as opposed to XML format, we also considered the fact that XBRL allows for more flexibility to implement, for example, potential extensions to the data to be tagged as discussed above.
We have also considered several reasonable alternatives for the definition of executive compensation actually paid.
One approach would be to define “executive compensation actually paid” as the incremental compensation earned by an executive in a given year over those amounts that had already been earned in previous years. In this case, executive compensation actually paid would, as in the proposed measure, include all of the components included in the Summary Compensation Table (such as salary and cash bonuses) but with adjustments to the amounts included for equity awards and pension plans. In contrast to the proposal, the measure based on the incremental compensation earned would include in a given fiscal year the grant-date values of any new equity awards granted that year together with the annual change in value (whether positive or negative) of any outstanding, unvested option and stock grants. The change in values of these grants would be included in each fiscal year until their vesting date. In the case of options, these changes in value would be measured by applying the registrant's chosen option valuation methodology (
The corresponding treatment for pension plans would be to include the present value of those benefits that were earned in the last fiscal year, which may differ from the actuarial present value attributable to services rendered during the applicable fiscal year. In particular, the latter may be based on estimates of future benefits that include the impact of assumptions about future levels of compensation. The former, on the other hand, is intended to capture the present value of the impact on future benefits that can be directly linked to the change in inputs to the benefit formula (including compensation levels as well as years of service) over the last fiscal year.
A potential benefit to shareholders of applying these alternative adjustments to equity and pension plans in presenting executive compensation actually paid is that, with respect to equity awards, it would reduce the volatility in executive compensation actually paid, which, as discussed above, could reduce the comparability of the disclosures and the meaningfulness of relating the variation in the compensation measure over time to stock performance. In particular, this alternative approach would limit the value attributed to equity-based awards in any year to the change in value that is directly related to the stock return over that year, rather than including in the year of vesting the gains related to returns in all years since the grant was made. This approach may therefore allow shareholders to more readily interpret the relationship between variation in the compensation measure over time and stock performance. It may also reduce the unintended, indirect encouragement of shorter or more graduated vesting schedules in order to smooth executive compensation actually paid under the proposed definition.
In addition, this alternative approach would limit potentially significant differences in the measured executive compensation of registrants that provide very similar equity awards but with vesting schedules that are not synchronized. As discussed above, if
Finally, including the value of equity awards at the grant date and then reflecting changes in this value in the years until vesting would increase the comparability of the disclosures across registrants that rely on equity awards to different extents while still demonstrating the performance sensitivity of unvested equity awards. For example, consider the example above, in which, for a given fiscal year, one PEO is paid a $1 million salary in cash and another PEO is paid $1 million in restricted stock that vests after one year, each of which comprises their total compensation. In contrast to the proposed approach, which would reflect executive compensation actually paid of $1 million and zero, respectively, for the two executives in that year, this alternative would reflect the same level of compensation for the two PEOs in that year, while still presenting any changes in the value of the second PEO's stock grant over the next year. It is important to note that these changes in value could be negative. For example, if the price of the stock granted to the second PEO were to fall significantly thereafter, or if the vesting conditions were not satisfied, this alternative approach could result in a large negative adjustment to that PEO's executive compensation actually paid in the year of such price change or failure to vest.
With respect to pensions, this alternative approach would provide a measure of future benefits that may be more directly tied to changes over the last fiscal year. Pension benefits may be a function of compensation levels, as in the case of pay-related, final-pay, final-average-pay, or career-average-pay plans. In the proposed approach, the values included for pensions are based on estimates that may already incorporate projections about future compensation levels. As a result, the effect of actual changes in current compensation levels on the value included for pensions in the proposed measure may be dampened. Because actual changes in current compensation may be related to performance, and these changes in compensation may be magnified by pension benefits that are a function of compensation levels, the alternative approach may be more useful in evaluating the relationship between pay and performance. The alternative approach may also further increase the comparability between compensation provided through defined benefit and defined contribution plans, since registrant contributions to defined benefit plans may also be directly related to current compensation levels or other such metrics with respect to the last fiscal year.
However, interpreting compensation “actually paid” as the incremental compensation earned by an executive in a given year would increase the reporting burden for registrants, because equity awards would have to be revalued in each year from the grant date until the time of vesting, rather than only at the grant date (for the purpose of the Summary Compensation Table and related disclosures) and at any vesting dates (for the purpose of the proposed pay-versus-performance disclosure). Also, the calculations to be made with respect to pensions may be less directly related to the values already calculated for the purpose of financial statement reporting, and could therefore be more burdensome. Overall, this approach may provide some benefits but could result in additional costs.
Some commenters suggested excluding components of pay that may be considered to be unrelated to performance—such as perquisites, values related to retirement benefits, or even base salaries—from the definition of executive compensation actually paid.
The proposal would require registrants to include the Summary Compensation Table measure of total compensation together with executive compensation actually paid in the tabular disclosure of pay and performance measures, but some commenters have suggested that executive compensation actually paid also be defined to be more similar to this existing measure. For example, four commenters supported the use of grant-date values for equity awards in executive compensation actually paid.
Throughout this release, we have discussed the anticipated costs and benefits of the proposed amendments. We request and encourage any interested person to submit comments regarding the proposed amendments and our analysis of the potential effects of the amendments. We request comment from the point of view of registrants, shareholders, and other market participants. With regard to any comments, we note that such comments are particularly helpful to us if accompanied by quantified estimates or other detailed analysis and supporting data regarding the issues addressed in those comments. We also are interested in comments on the qualitative benefits and costs we have identified and any benefits and costs we have overlooked.
55. We seek comment and data on the magnitude of all of the costs and benefits identified as well as any other costs and benefits that may result from the adoption of the proposed amendments. In addition, we seek views regarding these costs and benefits for particular types of covered registrants, including small registrants, and for particular types of shareholders.
56. Would the proposed disclosure facilitate shareholders' evaluation of a registrant's executive compensation practices? Are there alternative definitions of executive compensation actually paid and financial performance, or other types of computations or compensation data, which would be more useful to shareholders in evaluating pay-versus-performance alignment, while still satisfying the mandate of Exchange Act Section 14(i)? Would limiting the applicability of the amendments to PEO compensation rather than that of all NEOs affect the benefit to shareholders? Would requiring the disclosure separately for each NEO affect this benefit?
57. How would the proposed treatment of equity awards, particularly the valuation and inclusion of such awards in executive compensation actually paid at the time at which they meet all vesting conditions, affect compliance costs and the comparability of the disclosure across registrants? Would the registrant's valuation of equity awards as of their vesting date provide new data of use to shareholders, relative to the compensation data currently required to be disclosed? What are the costs and benefits of alternative approaches to treating equity awards in the definition of executive compensation actually paid?
58. How would the proposed treatment of pension plans in executive compensation actually paid for registrants other than smaller reporting companies affect the costs and benefits of the proposed amendments, including any effects on compliance costs and the comparability of the disclosure across registrants? Would the inclusion in this compensation measure of only the actuarial present value of benefits attributable to services rendered during the applicable fiscal year provide new data of use to shareholders, relative to the pension information currently required to be disclosed? Would the adjustment provide a computation that makes information of interest to shareholders more readily available to them, even if this information is already disclosed in another form? What are the costs and benefits of alternative approaches to treating pension plans in the definition of executive compensation actually paid?
59. Would the proposed scaled disclosure requirements for smaller reporting companies reduce the compliance burden for such registrants while not adversely impacting shareholders? Could the disclosure be otherwise scaled for smaller reporting companies to minimize the incremental burden on smaller reporting companies while preserving the benefits to shareholders?
60. What effect would the proposed amendments have on the incentives of boards, senior executives, and shareholders? Would the proposed amendments be likely to change the behavior of these parties, registrants, shareholders, or other market participants? Should we alter the proposed requirements to address that impact? If so, describe any changes that would address that impact and discuss any related costs and benefits that would arise from such a change.
61. Is the proposal likely to lead to shareholder confusion, such as about the optimality of current pay-versus-performance alignment? Is the proposed ability to provide additional, alternative measures of compensation and performance, as well as the proposed flexibility in presentation format, sufficient to offset potential shareholder confusion? Would such additional measures or variation in formats meaningfully limit the comparability of the disclosure across registrants or otherwise affect the benefits of Exchange Act Section 14(i)? Is there additional information that we could require of all registrants, or particular minimum standards for the presentation format, that would enhance comparability and the benefits to shareholders at a reasonable cost to registrants?
62. What effect would the proposed amendments have on competition? Would the proposed amendments put registrants subject to the requirements or particular types of registrants subject to the requirements at a competitive disadvantage? If so, what changes to the proposed requirements could mitigate the impact while still satisfying the mandate of Exchange Act Section 14(i)?
63. What effect would the proposed amendments have on market efficiency? Are there any positive or negative effects of the proposed amendments on efficiency that we should consider? How could the amendments be changed to promote any positive effect or to mitigate any negative effect on efficiency, while still satisfying the mandate of Exchange Act Section 14(i)?
64. What effect would the proposed amendments have on capital formation? How could the amendments be changed to promote capital formation or to mitigate any negative effect on capital formation resulting from the amendments, while still satisfying the mandate of Exchange Act Section 14(i)?
Certain provisions of the proposed amendments contain a “collection of information” within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).
“Regulation S-K” (OMB Control No. 3235-0071);
“Regulation 14A and Schedule 14A” (OMB Control No. 3235-0059); and
“Regulation 14C and Schedule 14C” (OMB Control No. 3235-0065).
We adopted all of the existing regulations and schedules pursuant to the Securities Act or the Exchange Act. The regulations and schedules set forth the disclosure requirements for registration statements and proxy and information statements filed by registrants to help shareholders make informed investment and voting decisions. Our proposed amendments to existing schedules and regulations are intended to satisfy the requirements of Section 14(i) of the Exchange Act.
The hours and costs associated with preparing, filing and sending the schedule constitute reporting and cost burdens imposed by each collection of information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Compliance with the amendments is mandatory. Responses to the information collections will not be kept confidential and there is no mandatory retention period for the information disclosed.
We are proposing to add new Item 402(v) to Regulation S-K. This item would require registrants to provide a table containing the values of the prescribed measures of executive compensation actually paid and the Summary Compensation Table measure of total compensation for the PEO and as an average for the other NEOs, as well as TSR both for the registrant and the peer group. The data in the table, including the footnote disclosure of the amounts deducted and added to the Summary Compensation Table measure, would be required to be tagged in XBRL. Proposed Item 402(v) also would require a registrant to provide a clear description of the relationship between executive compensation actually paid to its NEOs and the registrant's TSR for each of the five most recently completed fiscal years. A registrant also would be required to disclose the relationship between its TSR and peer group TSR. This disclosure about the relationship between a registrant's executive compensation actually paid and its TSR, and the disclosure about a registrant's TSR and peer group TSR would be required to be tagged in XBRL. Emerging growth companies and foreign private issuers would not be required to provide the disclosure. Smaller reporting companies would be subject to scaled disclosure requirements. The proposed disclosure would be required in proxy statements on Schedule 14A and information statements on Schedule 14C in which executive compensation disclosure pursuant to Item 402 of Regulation S-K is required.
We have proposed to base much of the information required in the pay-versus-performance disclosure on items that are already required elsewhere in the executive compensation disclosure provided by registrants. We believe that using as a starting point the total compensation that registrants already are required to report in the Summary Compensation Table and making adjustments to those figures will help reduce the burden on registrants in preparing the disclosure required by new Item 402(v) of Regulation S-K. As discussed above, the proposed amendments are not expected to result in the provision of significant new information to shareholders, or to require registrants to collect significant new data, relative to current disclosure requirements. All of the individual components and assumptions needed to calculate executive compensation actually paid already must be reported under existing disclosure requirements, with the exception of vesting-date valuation assumptions for options.
We arrived at the estimates discussed below by reviewing our burden estimates for similar disclosure and considering our experience with other tagged data initiatives. We believe that the proposed amendments regarding pay-versus-performance disclosure would enhance the already required compensation disclosure. In addition, we believe that much of the information required to prepare the pay-versus-performance disclosure would be readily available to registrants because it is required to be gathered, determined or prepared in order to satisfy the other disclosure requirements of Item 402 of Regulation S-K.
We estimate that the average incremental burden for a registrant to prepare the pay-versus-performance disclosure would be 15 hours. This estimate includes the time and cost of preparing disclosure that has been appropriately reviewed, including, as applicable, by management, in-house counsel, outside counsel and members of the board of directors as well as tagging the data in XBRL format. Because this estimate is an average of all companies, the burden could be more or less for any particular company, and may vary depending on a variety of factors, such as the degree to which companies use the services of outside professionals, or internal staff and resources to tag the data in XBRL. This burden, as discussed in more detail below, would be added to the current burdens for Schedule 14A and Schedule 14C.
As a result of the estimates discussed above, we estimate for purposes of the PRA that the total incremental burden on all registrants of the proposed amendments would be 67,500 hours for internal company time and $9,000,000 for the services of outside professionals. For the proxy and information statements on Schedule 14A and Schedule 14C, we estimate that 75% of the burden of preparation is carried by the company internally and that 25% of the burden of preparation is carried by outside professionals retained by the company at an average cost of $400 per hour. The portion of the burden carried by outside professionals is reflected as a cost, while the portion of the burden carried by the company internally is reflected in hours. There is no change to the estimated burden of Regulation S-K because the burdens that this regulation imposes are reflected in our revised estimates for the forms.
We derived our new burden hour and cost estimates by estimating the total amount of time it would take a registrant to prepare and review the disclosure requirements contained in the final rules. This estimate represents the average burden for all registrants, both large and small. Because it is difficult to determine the precise number of emerging growth companies, we have not adjusted the estimates to back the number of these companies out of our estimate, even though emerging growth companies would not be subject to the proposed amendments. In deriving our estimates, we recognize that the burdens will likely vary among individual registrants based on a number of factors, including the size and complexity of their executive compensation arrangements. We believe that some registrants will experience costs in excess of this average in the first year of compliance with the amendments and some registrants may
A summary of the proposed changes is included in the table below.
We request comments in order to evaluate: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information would have practical utility; (2) the accuracy of our estimate of the burden of the proposed collection of information; (3) whether there are ways to enhance the quality, utility, and clarity of the information to be collected; (4) whether there are ways to minimize the burden of the collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology; and (5) whether the proposed amendments will have any effects on any other collections of information not previously identified in this section.
Any member of the public may direct to us any comments about the accuracy of these burden estimates and any suggestions for reducing these burdens. Persons submitting comments on the collection of information requirements should direct the comments to the Office of Management and Budget, Attention: Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Washington, DC 20503, and should send a copy to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090, with reference to File No. ____ . Requests for materials submitted to OMB by the Commission with regard to these collections of information should be in writing, refer to File No. ____, and be submitted to the Securities and Exchange Commission, Office of FOIA Services, 100 F Street NE., Washington, DC 20549-2736. OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this release. Consequently, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication.
The Regulatory Flexibility Act (“RFA”)
The proposed amendments are designed to implement Exchange Act Section 14(i), which was added by Section 953(a) of the Dodd-Frank Act and would exempt certain reporting companies. Specifically, the proposed amendments would require registrants, other than emerging growth companies and foreign private issuers, to disclose in any proxy or information statement for which disclosure under Item 402 of Regulation S-K is required, the relationship between executive compensation actually paid to the NEOs and the financial performance of the registrant for the three most recently completed fiscal years, taking into account any change in the value of the shares of stock and dividends of the registrant and any distributions.
We are proposing the amendments pursuant to Section 953(a) of the Dodd-Frank Act and Sections 3(b), 14, 23(a) and 36 of the Exchange Act.
The proposed amendments would affect some companies that are small entities. For purposes of the RFA, under our rules, an issuer, other than an investment company,
As noted above, much of the information required by the proposed
The Regulatory Flexibility Act directs us to consider alternatives that would accomplish our stated objectives, while minimizing any significant adverse impact on small entities. In connection with the proposed amendments, we considered the following alternatives:
• Establishing different compliance or reporting requirements or timetables that take into account the resources available to small entities;
• Clarifying, consolidating or simplifying compliance and reporting requirements under the rules for small entities;
• Use of performance rather than design standards; and
• Exempting small entities from all or part of the proposed amendments.
The proposed amendments would require clear disclosure of prescribed measures of executive compensation actually paid and the company's financial performance and the relationship between these measures. All of the individual components needed to calculate executive compensation actually paid already must be reported under current disclosure rules, with the exception of the values to be included with respect to pension benefits and options. Given the straightforward nature of the proposed disclosure, we do not believe that it is necessary to exempt small entities from the proposed requirements. However, we have proposed scaled disclosure requirements for smaller reporting companies in an attempt to limit the compliance burden that would be imposed on such companies.
With respect to compliance timetables, the proposed rules provide smaller reporting companies with transitional relief whereby such companies would be required to provide two years of data, instead of three, in the first proxy filing after the rules become effective, and three years of data in subsequent proxy filings. The proposed rules also provide smaller reporting companies with a phase-in of the requirement to provide the disclosure in XBRL format.
Although the proposed amendments would require disclosure of prescribed measures of executive compensation actually paid and financial performance, they would permit issuers significant flexibility in presenting the relationship between these measures. For example, issuers, including small entities, could describe the relationship in narrative form or by means of a graph or chart. In this respect, the proposed amendments make use of both design and performance standards as a means of balancing the need for uniform disclosure across registrants with the desire to provide registrants with flexibility to describe their pay-versus-performance relationship in a format that is best suited to their particular circumstances.
Commenters are asked to described the nature of any impact on small entities and provide empirical data to support the extent of the impact.
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996,
• An annual effect on the U.S. economy of $100 million or more;
• a major increase in costs or prices for consumers or individual industries; or
• significant adverse effects on competition, investment, or innovation.
We request comment on whether our proposal would be a “major rule” for purposes of the Small Business Regulatory Enforcement Fairness Act. We solicit comment and empirical data on:
• The potential effect on the U.S. economy on an annual basis;
• any potential increase in costs or prices for consumers or individual industries; and
• any potential effect on competition, investment, or innovation.
We are proposing the amendments contained in this document under the authority set forth in Section 953(a) of the Dodd-Frank Act and Sections 3(b), 14, 23(a) and 36 of the Exchange Act.
Reporting and recordkeeping requirements; Securities.
For the reasons set out in the preamble, Title 17, Chapter II of the Code of Federal Regulations is proposed to be amended as follows:
15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78j-3, 78
(v)
(2) The Table shall include:
(i) The fiscal year covered (column (a));
(ii) The PEO's total compensation for the covered fiscal year as reported in the Summary Compensation Table pursuant to paragraph (c)(2)(x) of this Item, or paragraph (n)(2)(x) for smaller reporting companies (column (b)), and the average total compensation reported for the remaining named executive officers reported pursuant to those paragraphs (column (d));
(iii) The executive compensation actually paid to the PEO (column (c)) and the average executive compensation actually paid to the remaining named executive officers (column (e)). If more than one person served as the registrant's PEO during a fiscal year, include in column (c) the aggregate compensation actually paid for the persons who served as PEO. For purposes of columns (c) and (e) of the table required by paragraph (v)(1) of this Item, executive compensation actually paid shall be the total compensation for the covered fiscal year for each named executive officer as provided in paragraph (c)(2)(x) of this Item, or paragraph (n)(2)(x) for smaller reporting companies, adjusted to:
(A) Deduct the aggregate change in the actuarial present value of the named executive officer's accumulated benefit under all defined benefit and actuarial pension plans reported in the Summary Compensation Table in paragraph (c)(2)(viii)(A) of this Item;
(B) Add the service cost under all defined benefit and actuarial pension plans reported in the Summary Compensation Table in paragraph (c)(2)(viii)(A) calculated as the actuarial present value of each named executive officer's benefit under all such plans attributable to services rendered during the covered fiscal year, consistent with “service cost” as defined in FASB ASC Topic 715; and
(C) Deduct the amounts reported in the Summary Compensation Table pursuant to paragraphs (c)(2)(v) and (vi) of this Item and add in their place the fair value on the vesting date of all stock awards, and all options awards, with or without tandem SARs (including awards that subsequently have been transferred), for which all applicable vesting conditions were satisfied during the covered fiscal year.
(iv) For purposes of columns (f) and (g) of the table required by paragraph (v)(1) of this Item, for each year disclose the cumulative total shareholder return of the registrant (column (f)) and peer group cumulative total shareholder return (column (g)) calculated in the same manner, and over the same measurement period, as under Item 201(e) of Regulation S-K. The term “measurement period” shall be the period beginning at the “measurement point” established by the market close on the last trading day before the registrant's earliest fiscal year in the table, through and including the end of the registrant's last completed fiscal year. The closing price of the measurement point must be converted into a fixed investment, stated in dollars, in the registrant's stock (or in the stocks represented by the peer group). For each fiscal year, the amount included in the table shall be the cumulative total shareholder return as of the end of that year. The same methodology must be used in calculating both the registrant's total shareholder return and that of the peer group.
(3) For each amount disclosed in columns (c) and (e) of the table required by paragraph (v)(1), disclose in a footnote to the table for the PEO and the average remaining named executive officer compensation each of the amounts deducted and added pursuant to paragraph (v)(2)(iii). For disclosure of the executive compensation actually paid to named executive officers other than the PEO, provide the amounts required under this paragraph as averages.
(4) For the value of equity awards added pursuant to paragraph (v)(2)(iii)(C), disclose in a footnote to the table required by paragraph (v)(1) any assumption made in the valuation that differs materially from those disclosed pursuant to Instruction 1 to Item 402(c)(2)(v) and (vi), or for smaller reporting companies, Instruction 1 to Item 402(n)(2)(v) and (vi).
(5) In proxy or information statements in which disclosure is required pursuant to this Item, use the information provided in the table required by paragraph (v)(1) to provide a clear description of the relationship between:
(i) The executive compensation actually paid by the registrant to the PEO (column (c)) and the average of the executive compensation actually paid to the named executive officers other than the PEO (column (e)) listed in the Summary Compensation Table, and
(ii) The cumulative total shareholder return of the registrant (column (f)), for each of the registrant's last five completed fiscal years. This description shall also include a comparison of the cumulative total shareholder return of the registrant (column (f)) and cumulative total shareholder return of the registrant's peer group (column (g)) over the same period.
(6) The disclosure required to be provided pursuant to this paragraph (v) shall appear with, and in the same format as, the rest of the disclosure required to be provided pursuant to paragraph (v) and, in addition, shall be electronically formatted using the eXtensible Business Reporting Language (XBRL) in accordance with the EDGAR Filer Manual (17 CFR 232.11) as an exhibit to definitive Schedule 14A (17 CFR 240.14a-101) or definitive Schedule 14C (17 CFR 240.14c-101). Each amount required to be disclosed in
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15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c-3, 78c-5, 78d, 78e, 78f, 78g, 78i, 78j, 78j-1, 78k, 78k-1, 78m, 78n, 78n-1, 78o, 78o-4, 78o-10, 78p, 78q, 78q-1, 78s, 78u-5, 78w, 78x, 78
By the Commission.
Office of Nuclear Energy, Department of Energy.
Notice.
On May 1, 2015, the Secretary of Energy issued a determination (“Secretarial Determination”) covering continued transfers of uranium for cleanup services at the Portsmouth Gaseous Diffusion Plant and for down-blending of highly-enriched uranium to low-enriched uranium. The Secretarial Determination covers transfers of up to the equivalent of 2,500 metric tons of natural uranium (“MTU”) per year in 2015 and up to the equivalent of 2,100 MTU in each year thereafter. For the reasons set forth in the Department's “Analysis of Potential Impacts of Uranium Transfers on the Domestic Uranium Mining, Conversion, and Enrichment Industries,” which is incorporated into the determination, the Secretary determined that these transfers will not have an adverse material impact on the domestic uranium mining, conversion, or enrichment industry.
Effective May 1, 2015.
The 2015 Secretarial Determination and supporting documents are available on the Department's Web site at
Mr. David Henderson, U.S. Department of Energy, Office of Nuclear Energy, Mailstop NE-52, 19901 Germantown Rd., Germantown, MD 20874-1290. Phone: (301) 903-2590. Email:
The Department of Energy (DOE) holds inventories of uranium in various forms and quantities—including low-enriched uranium (LEU) and natural uranium—that have been declared as excess and are not dedicated to U.S. national security missions. Within DOE, the Office of Nuclear Energy (NE), the Office of Environmental Management (EM), and the National Nuclear Security Administration (NNSA) coordinate the management of these excess uranium inventories. Much of this excess uranium has substantial economic value on the open market. One tool that DOE has used to manage its excess uranium inventory has been to enter into transactions in which DOE exchanges excess uranium for services. This notice involves uranium transfers of this type under two separate programs. Specifically, DOE transfers uranium in exchange for cleanup services at the Portsmouth Gaseous Diffusion Plant and for down-blending of highly-enriched uranium to LEU.
These transfers are conducted in accordance with the Atomic Energy Act of 1954 (42 U.S.C. 2011
On May 1, 2015, the Secretary of Energy determined that continued uranium transfers for cleanup services at Portsmouth and down-blending services will not have an adverse material impact on the domestic uranium mining, conversion, or enrichment industry (“2015 Secretarial Determination”). This determination covers transfers of up to the equivalent of 2,500 metric tons of natural uranium (“MTU”) per year in 2015 and up to the equivalent of 2,100 MTU in each year thereafter. The Secretary based his conclusion on the Department's “Analysis of Potential Impacts of Uranium Transfers on the Domestic Uranium Mining, Conversion, and Enrichment Industries,” which is incorporated into the determination. The Secretary considered,
The full text of the 2015 Secretarial Determination is set forth below.
Set forth below is the full text of the Secretarial Determination.
Since May 15, 2014, the Department of Energy (“Department,” “DOE”) has transferred natural uranium and low-enriched uranium in specified amounts and transactions, subject to a determination I made on that date pursuant to § 3112(d)(2) of the USEC Privatization Act, 42 U.S.C. 2297h-10(d) (“2014 Determination”). For the reasons provided herein, the 2014 Determination is replaced by the determination described below, and no further transfers pursuant to the 2014 Determination will take place.
The 2014 Determination covered transfers of up to the equivalent of 2,705 metric tons of natural uranium (“MTU”) per year, in natural uranium hexafluoride provided to contractors for cleanup services at the Paducah or Portsmouth Gaseous Diffusion Plant and in low-enriched uranium transferred to contractors for down-blending highly enriched uranium. The 2014 Determination concluded that the transfers it described would not have adverse material impacts on the domestic uranium industries. In issuing this determination to supersede the 2014 Determination, I do not repudiate that conclusion or invalidate transfers made pursuant to the 2014 Determination.
However, after balancing the Department's goals regarding the projects being partly supported by uranium transactions with the Department's goal to help maintain healthy domestic nuclear industries, and reviewing responses to the Department's solicitations for public input, I have concluded that the lower rates of uranium transfers described herein are appropriate in the near term. I have therefore determined to permit transfers only at the lower rates described below. To avoid disruption to the projects involved, the Department will continue transferring at the pre-existing rates for approximately two months, as described below.
Accordingly, I determine that the following transfers will not have an adverse material impact on the domestic
(1) In calendar year 2015, up to 2,000 MTU contained in natural uranium hexafluoride, transferred to contractors for cleanup services at the Portsmouth Gaseous Diffusion Plant, in transfers of up to 600 MTU per quarter until June 30, 2015 and up to 400 MTU per quarter for the remainder of 2015; and
(2) in calendar year 2016 and thereafter, up to 1,600 MTU per calendar year contained in natural uranium hexafluoride, transferred to contractors for cleanup services at the Portsmouth Gaseous Diffusion Plant, in transfers of up to 400 MTU per quarter; and
(3) in calendar year 2015 and thereafter, an amount of low-enriched uranium equivalent to up to 500 MTU of natural uranium per calendar year, transferred to contractors for down-blending highly-enriched uranium to low-enriched uranium;
PROVIDED THAT
(4) in the event transfers of low-enriched uranium do not reach the equivalent of 500 MTU of natural uranium in any calendar year, transfers of natural uranium may exceed 400 MTU in the fourth quarter of that calendar year so long as the total amount transferred by the Department does not exceed the equivalent of 2,500 MTU of natural uranium in calendar year 2015 or the equivalent of 2,100 MTU of natural uranium in a subsequent year.
I base my conclusions on the Department's “Analysis of Potential Impacts of Uranium Transfers on the Domestic Uranium Mining, Conversion, and Enrichment Industries,” which is incorporated herein. As explained in that document, I have considered,
The Department of Energy (“Department” or “DOE”) plans to transfer the equivalent of up to 2,100 metric tons (“MTU”) of natural uranium per year (with a higher total for calendar year 2015, mainly because of transfers already executed or under way before today's determination). These transfers would include 1,600 MTU in natural uranium hexafluoride transferred in exchange for cleanup services at the Portsmouth Gaseous Diffusion Plant; and low-enriched uranium, at an assay of 4.95 wt-% U-235, equivalent to 500 MTU of natural uranium, transferred for services to down-blend highly enriched uranium. In support of a determination whether these transfers will have an adverse material impact on the domestic mining, conversion, or enrichment industry, the analysis below assesses the potential impacts of DOE's transfers. It takes account of the transfers just described as well as past DOE transfers still affecting the markets and certain transfers contemplated for later years.
For purposes of the Department's determination, transfers will have an “adverse material impact” when a reasonable forecast predicts that an industry will experience “material” harm that is reasonably attributable to the transfers. To test that attribution, the analysis compares the expected state of each industry in light of the planned transfers to what would happen in the absence of transfers. Such “but-for” analysis identifies what impacts DOE's transfers can be said to cause. As a corollary proposition, the analysis does not conclude that transfers would be impermissible solely because an industry is weak. Conversely, it also does not regard transfers as permissible so long as they are not the sole or primary cause of an industry's problem. The analysis must reflect existing conditions, whether prosperous or difficult; and the proper question is to what degree the effects of DOE's transfers would make an industry weaker.
Not every impact will be an “adverse material impact” for these purposes. In general, the Department regards an “adverse material impact” as a harm of real import and great consequence, beyond the scale of what normal market fluctuations would cause.
The analysis evaluates six factors for each industry: changes to prices; changes in production levels at existing facilities; changes to employment in the industry; changes in capital improvement plans; the long-term viability of the industry; and, as required by statute, sales under certain agreements permitting the import of Russian-origin uranium. The analysis relies on myriad inputs, including a study prepared for the Department by consultant Energy Resources International, Inc., market data and forecasts from several sources, reports by other market consultants, and additional submissions in response to the Department's requests for comment.
The uranium mining industry serves the market for uranium concentrates. DOE's transfers, including those described above, constitute less than 4% of global demand for uranium concentrates. The Department forecasts, on the basis of consonant results from multiple economic models that these transfers will tend to suppress prices (on average over a 10 year period) by about $2.70 per pound. While this price effect will decrease producers' revenues, the near-term impact will be smaller because most producers primarily sell on long-term contracts and therefore have limited exposure to price fluctuations. The impact on production and employment in the industry will also be limited. As prices increase over the coming decade, there appears to be little domestic production for which DOE's transfers would make the difference between expansion and contraction. In the long-term, the Department concludes that the effect of its transfers would delay decisions to expand or increase production capacity but would not change the eventual outcomes.
The uranium conversion industry processes uranium concentrates into uranium hexafluoride suitable for enrichment. Most conversion is sold on long-term contracts, and the sole domestic converter makes essentially all its sales that way. The distinctive feature of the conversion market is that the price for long-term contracts appears not to be the product of ordinary market forces. It has been stable for five years despite market changes that have caused the prices for uranium and enrichment to change by 50% or more, and despite the fact that none of the major converters in Western countries is producing at full capacity. These conditions arise in part because conversion is a key step in the nuclear fuel cycle, but one that makes up fairly little of the overall price of uranium fuel. At the same time, most of the costs of conversion are fixed costs. It appears that fuel customers are willing to pay the prices converters demand to secure long-term supplies. In light of these conditions, the Department concludes that the term price will remain stable despite DOE's transfers. Transfers will tend to cause a suppression of the global spot price by about $0.70 per kgU, but the domestic industry has no or almost no exposure to the spot price. DOE assumes the domestic industry will lose
The enrichment industry applies enrichment capacity to produce low-enriched uranium. It can also, by appropriate use of enrichment capacity, conserve natural uranium (through a mechanism called “underfeeding”) and effectively generate additional uranium supply. On the basis of several different models, DOE forecasts that its transfers will cause a price suppression of about $5.25 per SWU (separative work units, the unit for measuring enrichment services) in the near term and $5.40 per SWU over the longer term. The vast majority of enrichment is sold on long-term contracts, and indeed an enrichment provider typically will not invest in capacity without having such contracts in hand. The sole domestic enricher began operations in 2008, and contracts typically last 10 years or more. The domestic industry therefore has little exposure to current prices for enrichment. Because enrichers can also sell conserved natural uranium, a suppression of uranium concentrate and conversion prices can also affect their revenues. But that impact should be relatively small because natural-uranium sales consume only 10-15% of enrichment capacity. The Department also concludes that because enrichment facilities cannot easily decrease capacity, DOE transfers will not cause changes in production levels or employment at existing facilities. In the longer term, DOE's transfers will not significantly affect investment decisions because substantially higher prices would be needed to justify investment than could be obtained without market growth, even absent DOE's transfers. As it did with respect to the mining and conversion industries, the Department concludes that the effect of its transfers would, at most, slightly delay decisions to construct additional capacity.
The Department recognizes that market conditions have been difficult in recent years for all three industries. But its analytical task under section 3112(d)(2) is to forecast what additional harm industry would suffer that can reasonably be attributed to its transfers of uranium. The Department concludes that the potential impacts to the domestic uranium mining, conversion, and enrichment industries from transfers at the rates described above are not so great as to constitute adverse material impacts.
VI. Conclusion
In preparation for this Secretarial Determination, DOE sought information from the public through a Request for Information (RFI) published in the
In addition, DOE tasked Energy Resources International, Inc., (ERI) to assess the potential effects on the domestic uranium mining, conversion, and enrichment industries of the introduction of DOE excess uranium inventory in various forms and quantities through sale or transfer during calendar years 2015 through 2024 (“2015 ERI Report”). This study also updated an earlier analysis that ERI prepared prior to the May 2014 Secretarial Determination
On March 18, 2015, DOE published a Notice of Issues for Public Comment (NIPC) in the
DOE manages its excess uranium inventory in accordance with the Atomic Energy Act of 1954 (42 U.S.C. 2011
The USEC Privatization Act (Pub. L. 104-134, 42 U.S.C. 2297h
Section 3112 of the USEC Privatization Act also contains
In March 2008, then-Secretary of Energy Bodman released a Policy Statement outlining a framework within which DOE intended to make decisions concerning use and disposition of its excess uranium inventory (“2008 Policy Statement”).
Based on this policy statement, in December 2008 DOE released its Excess Uranium Inventory Management Plan providing a comprehensive inventory of its excess uranium and details about DOE's preliminary plans for future management of its excess uranium inventory (“2008 Plan”). DOE's excess uranium inventory in 2008 consisted of highly enriched uranium (HEU), natural uranium hexafluoride (UF
Since 2008,
DOE's National Nuclear Security Administration (NNSA) has transferred LEU down-blended from HEU (“blended LEU,” or “BLEU”) to the Tennessee Valley Authority for use in its Brown's Ferry Nuclear Plant. This program is discussed below in Section I.D.2.a. DOE and NNSA have also been transferring a small amount of high-assay LEU (
In 2008, NNSA began an additional program of down-blending approximately 12.1 metric tons of HEU. In the course of this program, NNSA has transferred a portion of the resulting LEU to the contractor in exchange for the down-blending services. Prior to the start of this program the Secretary determined in October 2008 that the transfer of LEU in exchange for the down-blending of up to 12.1 metric tons of HEU would not have an adverse material impact on the domestic uranium mining, conversion, or enrichment industries. The amount of derived LEU was expected to be equivalent to approximately 336 MTU of natural uranium. 2008 Plan, at 11. NNSA is currently engaged in a successor program to down-blend another 3 metric tons of HEU, and the transfers considered in this analysis include further LEU in exchange for the down-blending services.
In July 2009, DOE announced that it would accelerate cleanup efforts at the Portsmouth Gaseous Diffusion Plant through increased funding and through transferring uranium in exchange for cleanup services. Beginning in
Beginning in March 2011, EM transferred uranium for cleanup services at Portsmouth at an increased rate of 450 MTU per quarter. These transfers were conducted in accordance with the Secretary's Determination in March 2011 that such transfers between the first quarter of 2011 and the end of calendar year 2013 would not have an adverse material impact on the domestic uranium mining, conversion, or enrichment industry. Transfers during this period were limited to no more than 1,605 MTU per calendar year.
Beginning in 2012, EM transferred uranium for cleanup services at Portsmouth at an increased rate of 600 MTU per quarter and no more than 2,400 MTU per year. NNSA also extended its program of transferring LEU in exchange for down-blending services. The rate of transfers for down-blending after May 2012 was equivalent to 400 MTU of natural uranium. These transfers were conducted in accordance with the Secretary's determination in May 2012 that the sale or transfer of these amounts of uranium would not have an adverse material impact on the domestic uranium mining, conversion, or enrichment industries. In addition to these transfers, DOE also transferred in 2012 and 2013 approximately 9,156 MTU of depleted uranium to Energy Northwest. This transfer was included in the May 2012 Secretarial Determination and is discussed further in Section I.D.2.b.
In March 2013, DOE transferred approximately 48 MTU of LEU to USEC Inc. in exchange for an amount of natural uranium hexafluoride equivalent to the feed component of that LEU—409 MTU—and the value of approximately 299,000 SWU of enrichment services. The value of these services was retained by USEC to fund a portion of DOE's cost share under a 2012 Cooperative Agreement between DOE and USEC. This transfer was conducted in accordance with the Secretary's March 2013 determination that the sale or transfer of this uranium would not have an adverse material impact on the domestic uranium mining, conversion, or enrichment industries.
In July 2013, the Secretary issued a revised Excess Uranium Inventory Management Plan (“2013 Plan”), based on an updated inventory of the Department's uranium as of December 31, 2012.
The 2013 Plan
On May 15, 2014, the Secretary determined that sales or transfers of a total of 2,705 MTU per calendar year will not have an adverse material impact on the domestic uranium mining, conversion, or enrichment industries (“2014 Secretarial Determination”). The 2,705 MTU was broken down as follows:
• Up to 2,055 MTU per year to DOE contractors for cleanup services at the Paducah or Portsmouth Gaseous Diffusion Plant, in quarterly transfers of up to 600 MTU for the period 2014 through 2021;
• Up to 650 MTU per year to the National Nuclear Security Administration (NNSA)'s contractors for down-blending of HEU to LEU for the period 2014 through 2022;
• Provided that, in the event down-blending transfers do not reach 650 MTU in any year, transfers for cleanup
This section provides an overview of the various uranium transactions considered in this analysis. The first category of transfers are those that DOE plans to undertake during the next two years pursuant to today's determination under section 3112(d). The second category includes other transfers that have been made or may be made that may be relevant to DOE's analysis of the possible impacts of transfers in the first category. The third category includes the Russian HEU Agreement and Suspension Agreement. This last category of transactions does not directly involve DOE, but section 3112(d) of the USEC Privatization Act instructs DOE to take account of them.
Today's determination concludes that certain transfers will not cause adverse material impacts on the domestic uranium industries. Those transfers, outlined below, include transfers of natural uranium for cleanup services at the Portsmouth Gaseous Diffusion Plant and of LEU for down-blending services.
Through its Office of Environmental Management (EM), DOE contracts with Fluor B&W Portsmouth for cleanup services at the Portsmouth Gaseous Diffusion Plant. This work involves decontamination and decommissioning of approximately 415 facilities (including buildings, utilities, systems, ponds, and infrastructure units) that make up the former uranium enrichment facility. In recent years, work under this contract has been funded through both appropriated dollars and uranium transfers. As the value of transferred uranium changes depending on market prices and on the Department's decisions regarding how much uranium to transfer, uranium can constitute a greater or lesser proportion of the total funding.
During the period covered by today's determination, DOE plans to transfer up to 1,600 MTU per calendar year of natural uranium hexafluoride in exchange for cleanup services at the Portsmouth Gaseous Diffusion Plant. Today's determination will be issued in the middle of calendar year 2015, after DOE has transferred material for part of the year at the higher rates permitted by the 2014 Determination. However, performing the analysis and determination on a calendar-year basis will just mean that DOE's analysis reflects a higher overall rate for 2015, in light of the material already transferred. Accordingly, for the sake of simplicity, DOE will analyze 2015 transfers for the cleanup program of up to 2,000 MTU.
NNSA contracts with WesDyne International for down-blending of HEU to LEU. The HEU is transferred to WesDyne's contractor, Nuclear Fuel Services, Inc., in many forms—including metal, oxide, and compounds—and the resulting LEU is in the form of aqueous uranyl nitrate. This program is part of the United States' efforts to eliminate more than 200 metric tons of excess HEU, which is a material that is costly to store securely and represents a proliferation risk. To complete down-blending, the contractor buys natural uranium and uses it to dilute the U-235 contained in the HEU, producing LEU enriched to 4.95 wt-% U-235.
Work under these contracts continues to be funded through the transfer of some of the LEU that results from the down-blending. Under the terms of the contract with WesDyne, DOE can use a mix of money and uranium—ranging from entirely money to entirely uranium—to fund this contract, but in practice funding has been entirely through uranium transfers and is expected to continue to be entirely through uranium unless circumstances necessitate the use of appropriated money.
During the period covered by today's determination, DOE plans to transfer an amount of low-enriched uranium equivalent to up to 500 MTU of natural uranium. This amount is derived by transferring up to 60 MTU per calendar year of low-enriched uranium at 4.95 wt-% U-235 in the form of aqueous uranyl nitrate for down-blending services. Assuming a tails assay of 0.20 wt-% U-235, it would require approximately 555 MTU of natural uranium and approximately 520,000 separative work units (“SWU”) to produce that quantity of LEU. In order to down-blend the HEU to LEU, the down-blending contractor must purchase natural uranium hexafluoride for use as diluent in an amount equal to about 10% of the natural uranium equivalent contained in the LEU,
As with the transfers for cleanup services at the Portsmouth Gaseous Diffusion Plant, DOE has already transferred some amount of LEU during 2015 at rates permitted by the 2014 determination. For the sake of clarity and for simplicity, and for reasons like those discussed above, today's determination and this analysis cover an amount of low-enriched uranium equivalent to up to 500 MTU of natural uranium for 2015.
In addition to transfers described above, this analysis considers several transfers that are not covered by today's determination, for various reasons. Although some of these transfers are not subject to section 3112(d), the Department has analyzed their potential impacts on domestic industries, for those transfers already concluded, and will analyze such impacts for those yet to be carried out, to provide a complete picture of the Department's uranium transfers. In addition, in 2009, DOE issued a Finding of No Significant Impact (“FONSI”) in connection with its National Environmental Policy Act review of its proposed action to sell or disposition excess depleted, natural, and low-enriched uranium. In the Mitigation Action Plan included as part of the 2009 FONSI, DOE undertook to “conduct an analysis prior to particular sales or transfers . . . to ensure there would be no potentially significant impacts to the domestic uranium industry.” As part of its Mitigation Action Plan, the Department committed to conducting a market impact analysis of depleted uranium sales or transfers to determine whether such sales or transfers would cause potentially significant impacts on the domestic uranium industries, and to adjust the proposed sales or transfers “as necessary to ensure that such potentially significant impacts are avoided or mitigated.” 74 FR 31420, at 31421-22 (July 1, 2009).
In addition, this analysis considers some transfers that may be subject to section 3112(d) but that are still only being planned. While today's determination does not cover those transfers because they are not yet close enough to fruition, DOE conducts this analysis with awareness that these other transfers may happen in years to come.
DOE has a significant quantity of HEU inventory that contains various contaminants, so that the down-blended LEU product would not meet American Society for Testing and Materials commercial nuclear fuel specifications. Under a 2001 Interagency Agreement
In 2012 and 2013, DOE transferred 9,075 MTU of high assay depleted uranium hexafluoride (DUF
In July 2013, DOE issued a Request for Offers for the sale of depleted and off-specification uranium hexafluoride inventories. These inventories include large amounts of high-assay and low-assay depleted UF
The July 2013 Request for Offers also sought offers for the sale of certain amounts of uranium hexafluoride that, like the LEU provided to TVA mentioned above, do not meet American Society for Testing and Materials specifications. This “off-spec” material consists of approximately 1,106 MTU contained in 239 cylinders at the Paducah and Portsmouth Gaseous Diffusion Plants. In November 2013, DOE announced that it would enter into negotiations with AREVA for the sale of this inventory.
In 2008, a DOE contractor issued a Request for Proposals for the sale and disposition of off-specification, non-UF
DOE also transfers LEU enriched to assays between 5 and 20 wt-% U-235 for domestic and foreign research applications. Most of these transfers are conducted in accordance with section 3112(e) of the USEC Privatization Act, such as transfers to domestic and foreign research reactors; however, some may fall within section 3112(d), such as transfers for use in commercial research and isotope production applications. In general, these transfers do not contribute to any impacts that DOE uranium transfers overall have on domestic uranium industries, because the transfers do not displace commercially supplied uranium, conversion, or enrichment from the market. No commercial supplier is currently capable of providing LEU at these assays, so a research reactor operator would not be able to replace DOE-sourced material by buying uranium hexafluoride and having it enriched to those levels. In general, it would also be technologically infeasible for research reactor operators to replace DOE-sourced high-assay LEU by converting the reactors to use commercial-assay LEU and retain the ability of the reactor to be used for research. Even if these reactors could use LEU (either at high or low assay) from commercial suppliers, the amounts are extremely small. Thus, DOE's supply of high-assay LEU for research applications has at most a
As explained below, section 3112(d) of the USEC Privatization Act states that a Secretarial Determination must take into account the sales of uranium under two agreements relating to uranium from the Russian Federation: The Agreement Between the Government of the United States of America and the Government of the Russian Federation Concerning the Disposition of Highly Enriched Uranium Extracted from Nuclear Weapons, Feb. 18, 1993 (“Russian HEU Agreement”), and the Agreement Suspending the Antidumping Investigation on Uranium from the Russian Federation, 57 FR 49220, at 49235 (Oct. 30, 1992) (“Suspension Agreement”).
The Russian HEU Agreement was originally signed on February 18, 1993, and provided for the purchase over a 20-year period of LEU derived from 500 MTU of weapons-origin HEU from Russia. In total, this material contained the equivalent of almost 400 million pounds U
The sale of this uranium into the commercial market has not directly involved DOE. The material was actually transferred to the United States through a commercial agreement between the U.S. and Russian Executive Agents. The U.S. Executive Agent—initially the United States Enrichment Corporation, and later the private corporation USEC, Inc.—then sold the LEU into the U.S. nuclear fuel market to commercial utilities.
The USEC Privatization Act altered the implementation of the Russian HEU Agreement. The Act directed the Executive Agent to enter into an agreement to return to the Russian Executive Agent an amount of uranium equivalent to the natural uranium component of LEU received under the agreement after January 1, 1997, or, if the Russian Executive Agent did not enter such an agreement, to auction the uranium.
In 1991, the Department of Commerce initiated an antidumping duty investigation under the Tariff and Trade Act to determine whether imports of uranium from the U.S.S.R. were being sold into the United States at less than fair value. In 1992, the Department of Commerce entered into an agreement with the Russian Federation (“Suspension Agreement”) suspending the antidumping investigation and establishing export limits on uranium from those countries. 57 FR 49220 (Oct. 30, 1992).
The Suspension Agreement has been amended several times since it first came into force. At the time the USEC Privatization Act was passed in 1996, the Suspension Agreement allowed Russian natural uranium and SWU to be imported only if it was matched with an equal portion of newly-produced U.S.-origin natural uranium or SWU. These “matched sales” were subject to annual volume limits ranging from 1.9 million to 6.6 million pounds U
The most recent iteration of the Suspension Agreement entered into force in 2008. 73 FR 7705 (Feb. 11, 2008). That agreement provides for the resumption of sales of natural uranium and SWU beginning in 2011. While the HEU Agreement remained active (
The nuclear fuel market consists of four separate industries: mining/milling, conversion, enrichment, and fabrication. These industries interact in complicated and sometimes counterintuitive ways. In order to analyze the effect on the various industries of introducing a given amount of uranium into the market, it is necessary to understand how uranium is processed into nuclear fuel, how the different aspects of this process interact, and how the consumers of uranium—nuclear reactor owners/operators—procure uranium. This section provides an overview of these industries and markets, beginning with the process for producing nuclear fuel from uranium ore.
In order to be useful as fuel for a reactor, uranium must be in a specific chemical form, it must have the correct isotopic concentration, and it must be fabricated into the correct physical shape and orientation. The four nuclear fuel cycle industries—mining, conversion, enrichment, and fabrication—ensure that reactor operators have a steady supply of usable fissile material to fuel their reactors.
The first step in the nuclear fuel cycle is mining. Uranium is relatively common throughout the world and is found in most rocks and soils at varying concentrations. There are two primary methods of mining uranium: Conventional and in-situ recovery. Which method is used for a particular deposit depends on the specific characteristics of the deposit and surrounding rock.
Conventional mining can involve either open pit or underground removal of uranium ore. Once removed from the ground, the uranium ore must be transported to a mill for processing. Many mining operations are located close to mills; where mines are close together, one mill may process ore from several different mines. Once at the mill, the ore is crushed and chemically treated to remove the uranium from the other minerals, a process called “leaching.” The solids are then separated from the solution and dried. The final result is a powdered uranium oxide concentrate, often known as “yellowcake” and predominately made of triuranium octoxide, or U
An alternative mining process is known as in-situ recovery (ISR). In ISR mining, the uranium ore is not removed from the ground as a solid. Instead, an aqueous solution—either acid or alkali—is pumped into the ground through injection wells, through a porous ore deposit, and back out through production wells. As the solution moves through the ore deposit, the uranium in the ore dissolves or leaches into the solution. Once the uranium-laden solution is pumped out, it is pumped to a treatment plant where uranium is recovered and dried into yellowcake. In order to maintain a stable rate of production, wellfields must be continually developed and placed into production.
There are several key differences between conventional and ISR mines. ISR mining typically has lower costs, both capital and operational. ISR mines also have a shorter lead-time for development. There are other advantages compared to conventional mining such as decreased radiation exposure for workers, reduced surface disturbance, and reduced solid waste. However, ISR mining can only extract uranium located in deposits that are permeable to the liquid solution used to recover the uranium, and the permeable deposit must have an impermeable layer above and below to prevent the solution from leaching into groundwater. To the extent that uranium is located in other types of deposit ISR mining may not be possible.
The second step in the nuclear fuel cycle is conversion. When yellowcake arrives at conversion facilities it may contain various impurities. The conversion process refines the uranium compounds and prepares it for the next stage.
As discussed in the next section, most nuclear reactors require uranium that is enriched in the isotope U-235.
There are several different processes for converting U
The third step in the nuclear fuel cycle is enrichment. As found in nature, uranium consists of a mixture of different uranium isotopes. The two most significant isotopes are U-235 and U-238. The relative concentration of the various isotopes of uranium in a given amount is referred to as the isotopic concentration or “assay.”
Nuclear reactors typically require uranium that is enriched in the isotope U-235, meaning that it has a higher concentration of U-235 compared to natural uranium. Commercial light water reactors, which are the most common type of nuclear reactor, typically require an assay of 3% to 5% U-235. Uranium enriched in the isotope U-235 is referred to as low-enriched uranium (LEU) if the assay is less than 20% but above 0.711%, and highly-enriched uranium (HEU) if the assay is greater than 20%.
There are many different enrichment processes, but only two have been used commercially: Gaseous diffusion and gas centrifugation. These technologies exploit the mass difference between U-238 and U-235 atoms. In a centrifuge, centripetal acceleration tends to concentrate lighter materials towards the center of the rotation and heavier materials towards the outside of the rotating vessel. The mass difference between a UF
After UF
The final step in the process is fabrication. Almost all nuclear reactors require fuel to be in the form of uranium dioxide (UO
Uranium that undergoes the above-described four steps without any intermediate use is generally termed “primary supply.” However, there are other sources of uranium available in the market. Uranium from these other sources is collectively known as “secondary supply.” In addition to government inventories of uranium left over from other uses such as weapons production, the most significant secondary supplies come from excess enrichment capacity.
Due to technical constraints, enrichers generally cannot easily decrease capacity that is already constructed and operating. If an enricher were to shut down a centrifuge that is currently spinning, it may not be possible to restart the centrifuge. Due to this possibility, decreasing capacity risks damaging the machines and destroying the substantial capital investment in construction. As a result, enrichers that have unsold capacity will tend to apply the excess enrichment work in one of two ways.
First, enrichers can apply extra separative work to a given amount of feed material, thus extracting more of the U-235. This is known as “underfeeding” because it enables the production of a given amount of enriched product with a smaller amount of feed material. Normally, a purchaser of enrichment services seeking a specific amount of enriched product would need to determine (1) how much natural uranium feed to provide and (2) how much SWU to apply to it. Increasing the amount of enrichment services has a cost, but the additional work will extract more of the U-235 content of the feed material so that less is needed, at less cost. The relationship between the prices of uranium concentrates, conversion, and enrichment can be used to determine the amount of feed and SWU—and thus also the resulting tails assay—that will lead to the lowest cost per kilogram of enriched product. This is known as the “optimal tails assay.” If an enricher knows that it has excess capacity, it may choose to feed in a smaller amount of natural uranium and apply more SWU to that material than was purchased. Thus, the end result is the desired amount of enriched product, depleted tails, and the natural uranium that was delivered to the enricher but was not fed into the enrichment process. The enricher can then sell this natural uranium on the open market.
Second, enrichers can feed depleted tails back into the enrichment process and apply additional separative work to them. This is known as re-enrichment of tails. As described above, the optimum tails assay varies over time as the prices of uranium concentrates, conversion, and enrichment change relative to each other. Over time, depleted tails with relatively high assays may accumulate. An enricher may choose to select the highest-assay tails and feed them back into the enrichment process. These tails can be enriched up to the level of natural uranium (0.711%) or higher. The enricher may then sell the resulting natural uranium or LEU on the open market.
An additional source of secondary supply is from recycled uranium and plutonium either from reprocessing of commercial spent fuel or from weapons-
As discussed above, the different uranium industries use slightly different units. Uranium concentrates are generally measured in pounds U
It is worth noting that the measures of uranium concentrates and conversion services are not identical for several reasons. In addition to the fact that one is denominated according to U.S. customary units and the other is denominated under the international system of units (SI), the measure of uranium concentrates refers to the mass of U
Converting between uranium concentrates or conversion services and enrichment is more difficult because the amount of SWU necessary to produce a given amount of product depends on the desired product assay, the feed assay, and the tails assay. An example will serve to illustrate the significance of different assumptions. Assuming a tails assay of 0.30%, enriching 1,000 kgU as UF
DOE typically describes its uranium inventory in terms of MTU for natural uranium and MTU “natural uranium equivalent” for depleted and enriched uranium. These terms have a slightly different meaning depending on the form. For natural UF
Uranium concentrates, conversion services, and enrichment services can be traded separately. Prices for uranium concentrates are typically quoted in terms of dollars per pound U
A typical transaction may involve a single purchaser purchasing a given amount of uranium concentrate through a contract directly with the mining company. The uranium concentrate is typically delivered directly to a conversion facility rather than to the purchaser. The purchaser will also enter into a separate contract for conversion services. The terms of this contract will require the purchaser to deliver U
Although there are separate markets for each step in the process, the different steps are sometimes combined. It is possible to buy natural UF
In addition, even though the three components are traded separately, there is some interrelationship between the prices. Since optimal tails assay is a function of the relative price of uranium concentrates, conversion, and SWU, changes in one price can lead to shifts in demand and supply in the other markets. Similarly, excess enrichment capacity used for underfeeding or re-enrichment of tails increases supply of uranium concentrates and conversion services. Thus, changes in enrichment supply may contribute to changes in uranium concentrate and conversion prices.
Although the above represents a typical series of uranium transactions, there are many other potential types of transactions. These other forms are possible because uranium at each stage of the fuel cycle is fungible. As long as the basic characteristics like form and assay are the same, one kilogram of material is essentially the same as any
A simple example illustrates the types of transaction that this fungibility enables. After U
An entity can also sell conversion services or enrichment services without actually physically converting or enriching any material. A person that owns enriched UF
All three markets are global in nature. Purchasers are able to buy from suppliers worldwide and vice versa. Pricing for uranium concentrates and enrichment are essentially the same worldwide. Shipping costs are relatively low compared to other components of the prices, and the fungibility of the material allows suppliers and purchasers to minimize shipping costs through book transfers.
Although conversion services also trade on a worldwide market, in recent years there has been a persistent difference between prices in North America and those in Europe. DOE believes this stems from a geographical imbalance in conversion capacity relative to enrichment capacity. There is more conversion capacity in North America than enrichment capacity, and conversely in Europe there is more enrichment than conversion capacity. Consequently, there is a regular net flow of conversion services from North America to Europe. Meanwhile, it seems likely that the cost of shipping is larger relative to the conversion price than it is relative to the price of uranium or enrichment—mainly because conversion is the least costly input among the three, roughly $7.50 per kilogram at current spot prices compared to just over $100 per kilogram for uranium in concentrates. DOE believes the price difference between North American conversion and European conversion reflect simply the additional cost of shipping converted material from North America to Europe, together with the fact that net flow is from North America to Europe.
The vast majority of uranium in commercial use is fuel for commercial power generation. According to the International Atomic Energy Agency (IAEA), there are 440 commercial reactors operating worldwide, 99 of which are in the United States.
Nuclear reactors typically provide what is known as “baseload” electricity supply. This means that nuclear reactors generally operate close to their full practical capacity continuously. Thus, the amount of uranium needed for each reactor in a given year does not generally fluctuate with electricity use patterns. It depends instead on the total capacity of the reactor and the fuel reload schedule. The average reactor capacity worldwide is approximately 860 MW
According to the World Nuclear Association (WNA), a typical 1,000 MW
It is also worth noting that nuclear fuel makes up a very small percentage of overall costs for nuclear reactors—typically less than 10%. According to DOE's Energy Information Administration (EIA), for new nuclear generation, variable operations and maintenance costs, which include fuel costs, account for only about 12% of total system levelized costs.
The amount of fuel necessary to keep a reactor operating is relatively predictable. Although there is always the possibility of unplanned outages, reactor operators generally know how much enriched uranium they will need. The amount of uranium needed to fuel operating reactors is generally referred to as “requirements.” Small uncertainties in predictions about requirements are possible in the short run because an operator can vary its need for fuel to some degree by changing operating conditions.
For a given reactor operator, this predictability enables the operator to purchase uranium, conversion, and enrichment on long-term contracts. These contracts often have first delivery as much as five years in the future and can extend as long as ten or even fifteen years from the contract date. In addition, because shutting down a reactor for refueling is a complex and carefully orchestrated process that requires extensive planning, a reactor operator generally has strong incentives to ensure well in advance of each refueling that the reactor will be sufficiently supplied with fuel. Long-term contracts help meet that goal by providing a reactor operator guaranteed quantities of supply. Consequently, the vast majority of purchases of uranium concentrates, conversion, and
Aggregate requirements are also relatively predictable. However, long-term projections of future requirements must take into account changes in requirements from short-term outages, permanent shutdowns, and new reactor construction. Various entities develop and publish projections of future uranium requirements based on different assumptions about the rates of these changes, as well as different assumptions about operating conditions like reload schedules and fuel utilization (“burnup”), and about the possibility of unplanned outages or other temporary fluctuations in nuclear fuel use. These forecasts typically are based only on the nuclear fuel expected to be used in operating reactors; they do not include purchases of strategic or discretionary inventory.
Demand for uranium, conversion, or enrichment is generally not the same as reactor requirements in a given year. Some sources of demand are either in excess of or unconnected to reactor requirements. For example, many reactor operators hold strategic inventories of uranium beyond their requirements. This material provides flexibility in the event of a supply disruption. Different operators may have different strategic inventory policies, and those policies will shift over time. Changes in the level of strategic inventories held by individual reactors can produce additional demand or remove demand. Demand from reactor operators purchasing uranium for strategic inventory is commonly referred to as “discretionary demand.”
There are a number of market participants that are currently building inventory well above the strategic inventory that is typical of other operators. China, for example, has in recent years purchased as much as three times its current annual requirements. Japanese reactors have also been building inventory well in excess of requirements. Many Japanese reactors were shut down following the accident at the Fukushima Daiichi nuclear power plant in March 2011. Even though the reactors are not currently operating, many Japanese operators have continued to receive contracted deliveries of uranium.
In addition to reactor operators purchasing in excess of demand, there are a number of market participants that do not operate reactors at all. These include traders, brokers, and investment funds. These entities may purchase uranium when prices are low and resell it to reactor operators under future delivery contracts or hold uranium inventory until prices increase.
These activities mostly involve only uranium concentrates. However, some purchases in excess of requirements involve natural UF
Finally, changes in optimal tails assay can affect demand in a given year. Estimates of future reactor requirements typically assume a specific tails assay for enrichment. However, if enrichment prices change relative to uranium concentrate and conversion prices, some purchasers may have flexibility to specify a different tails assay for enrichment. This changes the amount of uranium concentrates, conversion, and SWU that are necessary to produce a given amount of fuel.
Price elasticity of demand is an economic measure that shows how the quantity demanded of a good or service responds to a change in price. If purchasers are highly responsive to changes in price, demand is relatively elastic. If purchasers are weakly responsive to changes in price, demand is relatively inelastic. If purchasers demand the same amount regardless of the price, demand is perfectly inelastic.
In general, demand for uranium, conversion, and enrichment are relatively inelastic. Since requirements are largely fixed, changes in price have a weak effect on demand. However, uranium markets exhibit different degrees of elasticity on different time frames.
In the short term, DOE expects that demand is more elastic than in the medium and long terms. Some of the behaviors discussed in the previous section are responsive to short term changes in price. Traders and investment funds are more likely to make speculative purchases when prices are low. Similarly, large-scale strategic buying, as China is doing, has corresponded with a period of very low prices. It seems likely that these purchases would decrease if short term uranium prices increased substantially.
These practices may be somewhat counteracted by the behavior of utilities. Although some utilities choose to build inventories when prices are low, others do the opposite. Somewhat counterintuitively, some reactor operators actually purchase less strategic inventory when prices are low. This appears to be related to perceptions about long-term security of supply. When prices are high, it may suggest scarcity in long term supplies. When prices are low, this may signal that long term supplies are relatively secure. Thus, reactor operators may paradoxically purchase more strategic inventory when prices are high.
As mentioned above, these behaviors are much more prevalent in the uranium concentrates markets. Demand in the conversion and enrichment markets may therefore exhibit less elasticity in the short term than the uranium market.
DOE expects that demand in the medium and long term is less elastic than in the short term. Indeed, in the medium term, demand for long-term contracts may actually increase, relative to spot purchases, as prices rise. As discussed above, fuel costs represent a very small portion of the overall cost of nuclear power.
Conversely, the cost of not having fuel can be very high, because the economics of nuclear reactors—
An increase in prices generally indicates a tightening of supply relative to demand. That signal can encourage reactor operators to increase, rather than decrease, long-term contracting to ensure future fuel supplies in the face of the anticipated tightening. The additional cost of a high-priced contract may be less important than the avoided risk of not having enough fuel. As a possible example of such behavior, long-term contracting for uranium concentrates increased significantly in 2005 and remained high in 2006 and 2007 as prices rose from approximately $20 per pounds in 2004 to over $90 in 2007; long-term contracting activity then fell in 2008 and 2009 as term prices fell from above $90 to closer to $60.
In the long term, elasticity of demand for nuclear fuel would reflect decisions about whether to construct new reactors or shut down existing reactors in response to long-run prices for fuel. This contribution to elasticity is likely to be small. Because fuel costs are such
As noted above, plans for reactor construction do change over time, so that uranium requirements will evolve over time. Demand for uranium is not constant. However, the changes in long-term demand are unlikely to be responses to uranium price signals. For these reasons, the analysis below will assume that medium- and long-term demand has low elasticity.
As explained above, supply of uranium concentrates, conversion, and enrichment includes both primary and secondary supply. According to charts developed by uranium market consultancy ERI, total production of uranium concentrates in 2015 and 2016 will be approximately 190 million pounds U
For conversion services, ERI expects that primary supply in 2015 and 2016 will total approximately 65 million kgU as UF
For enrichment services, ERI expects that primary supply in 2015 and 2016 will total approximately 63 million SWU, with secondary supply representing between 4 and 5 million SWU or about 8%. 2015 ERI Report, 16. Unlike uranium concentrates and conversion services, underfeeding and tails re-enrichment do not constitute a secondary supply of enrichment because those processes utilize enrichment capacity. Sources of secondary supply of enrichment include DOE inventory, plutonium/uranium recycle (MOX), and other commercial inventories.
Price elasticity of supply measures how the quantity supplied of a good or service responds to a change in price. If suppliers are highly responsive to changes in price, supply is relatively elastic. If suppliers are weakly responsive to changes in price, supply is relatively inelastic.
Enrichment services are relatively inelastic, and conversion services are complicated by pricing phenomena described below. With respect to uranium concentrates, the level of elasticity in the uranium markets varies depending on the time frame, just as demand elasticity does.
In the short term, supplies of uranium concentrates from primary producers are relatively inelastic. There is some limited capability for mines to decrease production. Conventional mines may choose to continue operation and stockpile uranium ore without milling it into yellowcake. ISR mines require constant development of new wellfields; these mines may slow production gradually by slowing wellfield development. These measures may take many months. Thus, in the short term, mines will be weakly responsive to changes in price. In contrast, secondary sources of uranium concentrates may respond more to changes in price. Underfeeding and tails re-enrichment, for example, depend on the relationship between SWU and uranium concentrate prices. In the short-term, enrichers cannot increase or decrease capacity, but they can quickly shift how much capacity is devoted to underfeeding versus primary enrichment.
Primary supply of conversion services is relatively inelastic in the short term. Conversion plants typically have high fixed production costs. Thus, there is relatively little incentive to change production in response to changes in price. (As discussed below, conversion supply has fluctuated in recent years; but those changes were not necessarily caused by price changes.) Secondary supplies of conversion, however, are more able to respond to changes in price. Underfeeding and tails re-enrichment results in natural UF
Primary supply of enrichment is also relatively inelastic in the short term. As discussed above, enrichers typically cannot remove machines from production due to technical concerns. Enrichers also cannot bring additional machines online in the short term to respond to changes in price because it takes several years to add new machines. Secondary supply of enrichment is a smaller proportion of the total supply than for uranium concentrates or conversion services. In addition, enrichers can change the amount of capacity devoted to primary enrichment as opposed to underfeeding. These supplies are more able to respond to changes in price.
In the medium and long term, primary supplies of uranium concentrates and enrichment should be more elastic than in the short term. Producers can develop and install additional capacity in response to projections that prices will increase. These decisions, however, typically involve very long time frames. It may take several years of active development before a new mine may begin production. New enrichment and conversion capacity may take on the order of ten years.
Uranium markets function in two ways, broadly speaking: Short-term deliveries, called the spot market, and longer-term commitments, called the term market.
For all three markets discussed here, there is a price for an immediate delivery, called the spot price, and a price for long-term contractual commitments, commonly called the term price. The vast majority of purchases on these markets are through term contracts. According to data from EIA, over 80% of purchases of uranium by U.S. owners and operators of nuclear power reactors in 2013 were through term contracts.
Several commenters say that medium-term futures contracts have increased in importance in recent years. Such a contract entitles a buyer to delivery of material at a future date between one and a few years after contract execution. The commenters observe that these contracts differ from traditional term contracts in that they involve one-time-only deliveries and that buyers ordinarily do not use them to secure long-term fuel supplies. In a sense, the commenters suggest, these contracts form an extension of the spot market to deliveries up to a few years in the future.
Unlike many other commodities, most uranium contracts are not traded through a commodities exchange. Instead, a handful of entities with access to the terms of many bids, offers, and contracts develop what are called “price indicators” based on those transactions. Two private consulting firms—UxC and TradeTech, LLC (TradeTech)—publish monthly spot and term price indicators for uranium concentrates, conversion, and enrichment. Both also publish weekly spot price indicators for uranium concentrates.
There are also a number of related published prices for U
As noted above, section 3112(d) states that DOE may transfer “natural and low-enriched uranium”
One commenter has argued that section 3112 does not permit DOE to transfer uranium hexafluoride (except pursuant to section 3112(b)). According to the commenter, “natural uranium” as used in section 3112(d) does not include uranium hexafluoride, at any isotopic concentration. For the reasons just given, DOE interprets “natural uranium” section 3112(d) to encompass transfers of uranium hexafluoride with the naturally occurring isotopic concentrations.
The USEC Privatization Act does not clearly indicate what kind or degree of effect or influence on an industry would constitute an “adverse material impact.” As discussed below, these words are susceptible of many meanings. Contextual clues provide some guidance in understanding the phrase, but DOE has not identified context (such as a
Moreover, the meaning of the phrase is likely to depend in part on the factual context in which it is to be applied.
Thus, the Department will need to exercise judgment to develop an understanding of “adverse material impact,” in its statutory context, as applicable to a given potential transfer or sale of uranium. Part of that task involves establishing an analytical framework to form the basis of and reach a determination about the impacts of DOE's transfers. The Department is responsible for analyzing relevant information in light of the statutory text and purposes to determine whether a particular sale or transfer will have an “adverse material impact” on the domestic uranium mining, conversion, or enrichment industry.
To make that assessment, DOE must first articulate what is the “domestic industry” for each of these markets. DOE interprets the word “domestic” to refer to activities taking place in the United States, regardless of whether the entity undertaking those activities is itself foreign. Hence, a facility operating in the United States would be part of “domestic industry” even if the facility is owned by a foreign corporation. DOE believes that the phrase “uranium mining, conversion or enrichment industry” includes only those activities concerned with the actual physical processes of mining, converting, and/or enriching uranium. Thus, acting solely as a broker for material mined, converted, or enriched by other entities does not constitute part of the domestic “industry.” The relevant purpose of section 3112(d) is to help preserve, to the degree possible, viable mining, conversion, and enrichment capacity in the United States. That purpose depends on the actual operation of facilities. To that end, DOE believes “domestic industry” should also include, to some extent, activities to develop and activate a facility in the United States, even if the facility has not yet entered production.
One commenter suggested that DOE should interpret “domestic . . . industry” to include secondary suppliers and supply chain companies, including remediation, reclamation, decontamination, decommissioning, and waste management. NIPC Comment of Fluor B&W Portsmouth (FBP), at 2-3. DOE believes that these other entities should not be included because doing so would not be necessary for the purpose noted above of preserving viable mining, conversion, and enrichment capacity in the United States. Participants in those industries need various services and supplies to be available, but they need not as a general matter obtain those services or supplies from domestic suppliers.
Next, DOE elaborates what it means for transfers to “have” an “impact.” DOE believes that it can appropriately fulfill the purpose of the statute by reading this phrase to refer to “impacts” that have a causal relationship to DOE transfers. The overall thrust of section 3112 is to permit transfers and sales of uranium to the degree consistent with various policy considerations set forth in various paragraphs.
Thus, in assessing a given transfer, DOE will essentially evaluate two forecasts: One reflecting the state of the domestic uranium industries if DOE goes forward with the transfer, and one reflecting the state of the domestic uranium industries if DOE does not go forward with the transfer. DOE will then compare these two forecasts to determine the relevant impacts on the domestic uranium industries.
Some commenters agreed that DOE's approach is reasonable. But other commenters believed DOE's approach amounted to saying DOE could justify a transfer solely on the basis that it has less impact than other factors. These commenters appear to have misunderstood DOE's analytical approach. DOE has not suggested that it will compare the impact of its transfers to the impact of other factors and consider an impact from its transfers “material” only if it is larger than others. Rather, DOE simply believes that if a given state of affairs would exist whether or not DOE made a certain transfer of uranium, that status should not be regarded as an “impact” that the transfer “ha[s],” for purposes of section 3112(d). Other comments argued that it should not be relevant whether a given negative outcome for domestic industry would occur independent of DOE's transfers. DOE disagrees. If, for example, a set of industry participants have halted plans to invest in production, and they would maintain that position with or without DOE transfers, it is appropriate under section 3112(d) to conclude that the transfers do not “have” the abandoned investments as an “impact.”
Commenters also suggested that DOE should not try to “justify” transfers on the ground that DOE transfers “are not the driver of the current negative state” of domestic uranium industries. Whether DOE's transfers are the “driver” of an industry's current state is not directly at issue. The statute uses the future tense; it directs DOE to determine, before a transfer, that the transfer “will not have an adverse material impact.” Thus, DOE's task is to make a prediction, before engaging in a transfer, about what consequences will flow from that transfer in the future. What contribution past transfers have made to the existing situation can be important for informing DOE's predictive judgment, and this analysis appropriately considers such matters. But whether or how DOE's past transfers caused or contributed to current circumstances is not, itself, the question that section 3112(d) poses.
DOE recognizes that causation can be difficult to determine, especially with respect to something as complex as a set of three interlocking markets and industries being possibly affected by DOE transactions that may vary over
DOE also notes that the statute directs DOE's attention to the “impact” on “industry.” Consistent with common understandings of these words, DOE believes a section 3112(d) analysis should address the actual effects on each industry. A set of transfers may have various influences on a given market (for uranium, conversion, or enrichment), but section 3112(d) does not instruct DOE to assess effects on the markets. Of course, market effects will be the most common mechanism through which transfers have impacts, if any, on domestic industry. But DOE will focus ultimately on the impacts to industry, rather than the market effects in the abstract. For example, if a hypothetical domestic company had locked in prices for the next ten years in long-term contracts, a decrease in prices during that time would not have an adverse impact on that company. Indeed, the price decrease could ultimately be beneficial to that company, if competitors were more exposed to and thus suffered greater harm from the price change.
With respect to assessing whether the adverse impacts of a transfer would be “material,” DOE observes that the word “material” is used to denote situations “of real importance or great consequence.”
As noted above, one purpose of the USEC Privatization Act was that DOE should manage and eventually dispose of the large legacy inventory that the privatization of USEC would leave it. In privatizing the United States Enrichment Corporation, Congress recognized that DOE would have uranium inventory left over and that this inventory would have substantial economic value. By including section 3112(d), Congress preserved the Secretary's discretion to utilize uranium transfers as a tool in managing the uranium inventory, and the substantial value embodied therein. If Congress had not wanted DOE to make productive use of its inventory, it could have prohibited all sales by the Department with or without a determination. Instead, the USEC Privatization Act explicitly directed DOE to transfer various quantities of uranium to market participants and permitted certain other transfers. 42 U.S.C. 2297h-10(b)(2), (c) & (e).
Section 3112 also provides helpful context that indicates the magnitude of industry impact that Congress considered acceptable. The statute specifically authorized material delivered under the Russian HEU Agreement to enter the U.S. market notwithstanding a preexisting suspension agreement limiting the entry of this material. 42 U.S.C. 2297h-10(b)(3), (5)-(7). The act contained annual limits on deliveries of the natural uranium content of the Russian material. The limits started at 2 million pounds U
Indeed, the structure and legislative history of section 3112(b) confirm that the schedule for Russian material's entering domestic markets reflects Congress's balancing of concerns similar to those that motivated section 3112(d)(2). Congress could have simply allowed all Russian material into the United States without limitation. Instead, Congress provided a schedule that ramped up over a period of 20 years. Congress evidently balanced the competing concerns of providing a market for down-blended Russian HEU and protecting the domestic uranium industries from large-scale disruption. The schedule outlined in section 3112(b) reveals the level of market interference that Congress believed struck that balance. This notion is further confirmed by the legislative history of this provision, which specifically states that Congress was trying to balance the interests in maintaining the Russian HEU Agreement with the interests of the domestic uranium industries.
The preceding discussion is not intended automatically to support transfers of up to 20 million pounds under section 3112(d). DOE must exercise judgment as to whether a given set of transfers would cause an adverse material impact, in light of market and industry conditions today. However, DOE believes that this provision provides some insight into what scale of market interference Congress considered acceptable and expected would not cause “adverse material impact.”
Several commenters stated their belief that DOE's understanding of “material” sets an impermissibly high bar and would make the section 3112(d)(2) restriction meaningless. NIPC Comments of ConverDyn, at 3; NIPC Comment of UPA, at 3. DOE clarifies that it does not read section 3112(d)(2) to mean that an impact must threaten the viability of an industry to be “material.” That example illustrates a type of impact that would be material, but other impacts could, depending on the circumstances, also be material. Exactly what impacts would rank as “material” cannot be specified in advance; as noted above, “adverse material impact” is a phrase the meaning of which is best developed by applying it to specific situations, as in the analysis below. DOE does believe that “adverse material impact,” in section 3112(d)(2), should be taken to mean harmful effects of great consequence, and it adheres to the view that effects comparable to what would result from ordinary market fluctuations will usually not qualify as “material.” As the example of the Russian uranium supply authorized by section 3112(b) illustrates, Congress contemplated that the government would affect uranium markets to a substantially greater extent than do commercial market participants. In addition, the USEC Privatization Act left DOE with a large inventory of
Some commenters also stated that “material” should mean any impact that is greater than
Commenters also cited examples of other meanings of “material,” particularly in statutes that include definitions for the term. There is no such definition in the USEC Privatization Act, however. These examples confirm that “material” can have a variety of meanings, depending on context, but are of little help for identifying a specific meaning for the phrase “adverse material impact” in the particular context of section 3112(d)(2).
Commenters also contended that DOE's transfers would have material impacts because they would affect prices or profits by a given percentage. To the extent commenters tied these claims to specific arguments why the given numerical effects are material in current circumstances, DOE addresses those arguments below. However, some commenters appear to believe that a change in price or profits is material solely because it exceeds some threshold percentage. DOE does not believe such rigid formulas are appropriate. First, as discussed above, DOE's task under section 3112(d)(2) is to predict impacts on the domestic industries, not just market effects. How much a given change in price affects an industry depends on the circumstances, including the degree to which industry members are exposed to that price change. Second, whether a given impact is material will generally depend on the circumstances as well. As a hypothetical example, suppose a transfer had the consequence of forcing a production facility to close. That outcome might not rank as a material impact on the industry if the facility were one out of fifteen facilities industry-wide and the others were in good financial condition.
With respect to the relationship DOE observes between section 3112(d) and uranium permitted under the Russian HEU Agreement, several commenters objected to DOE's observation, for several reasons. NIPC Comments of ConverDyn, Uranerz, and UPA. Some argued that the language in section 3112(d)(2) directing DOE to “take account” of the Russian HEU Agreement was meant only to ensure the viability of the Agreement. Under this view, section 3112(b) was the more important provision because it permitted the reduction of weapons stockpiles. Congress knew that section 3112(b) sales might severely disrupt domestic industries, and, the argument continues, it did not want section 3112(d) transfers to interfere with the process by disrupting them further. To that end, these commenters say, the statute directed DOE to bear the section 3112(b) sales in mind in making section 3112(d) determinations, so that DOE transfers would not “get in the way” of the Russian HEU Agreement.
The commenters' interpretation of the “taking account” language seems unduly constrained. Section 3112(d)(2) does not, by its terms, indicate that DOE's goal in taking account of Russian-origin uranium sales should be to facilitate or preserve those sales. To be sure, as commenters note, the successful implementation of the Russian HEU Agreement was an important policy goal of section 3112. However, the “taking account” clause also covers sales under the Suspension Agreement. Congress is unlikely to have had as strong an interest in ensuring the success of the Suspension Agreement, because it was simply the settlement of a trade dispute regarding Russian uranium producers. The mention of the Suspension Agreement supports DOE's view that it should “tak[e] account” of the two categories of Russian-origin uranium in various ways that depend on the circumstances. When sales of uranium under the two Agreements are high, that contribution to supply should be an important consideration when DOE makes a determination under section 3112(d)(2). When sales under the Agreements decrease, that decrease in supply can also be important to a determination.
Some commenters pointed out that market participants took steps to mitigate the effects of section 3112(b) sales, for example by committing the uranium on long-term contracts. DOE recognizes that the practical consequences of section 3112(b) were not as significant as section 3112(b) would have permitted. In addition to the mitigation efforts commenters described, the actual amounts delivered have generally been lower than the section 3112(b) caps. But as DOE stressed in the Notice, it does not believe the comparison to section 3112(b) leads to the conclusion that any transfers short of 20 million pounds per year would be permissible under section 3112(d). Section 3112(d) directs DOE to predict the actual impacts of transfers, in current conditions; DOE does not seek to rely on a numerical trigger like 20 million pounds. Rather, the comparison to section 3112(b) informs DOE's understanding of what degree of impact is “material” in the section 3112(d) sense.
It also bears mention that DOE's use of the section 3112(b) caps to inform interpretation of section 3112(d)(2) is not the mechanism by which DOE “tak[es] account of the sales of uranium” under the two Russian Agreements. As commenters point out, the sales that have actually occurred under the Russian HEU Agreement were smaller than what section 3112(b) permitted. DOE takes account of these sales—as well as those under the Suspension Agreement—in its analysis, below, of impacts on the domestic uranium industries. Apart from that analysis and the amounts of actual sales, DOE considers the volumes that Congress authorized in section 3112(b) to be informative for understanding what degree of consequence would
Section 3112(b) itself provides further evidence in support of that conclusion. It directs the President to monitor sales under the Russian HEU Agreement and report on any actions the President proposes to take “to prevent or mitigate any material adverse impact” the sales might have on the domestic uranium industries. But it does not require any particular presidential action. Thus, Congress evidently intended section 3112(b) sales not to have material adverse impacts but realized that they might. Notably, the possibility of material impact was uncertain enough that Congress deemed it unnecessary to mandate any preventative steps. Taken together, the structure of section 3112(b) suggests that “material” impacts refers to consequences of such significance that they might or might not result from sales at the rates section 3112(b) contemplated.
In general, commenters on this topic suggest that by instructing DOE to “tak[e] account” of sales under the Russian HEU Agreement, section 3112(d) meant to limit DOE's sales in light of the impact of the Agreement. These commenters argue that in the past DOE implicitly viewed the “taking account” clause as such a limit; Secretary Richardson placed a 10-year moratorium on transfers of Russian-origin uranium hexafluoride in DOE's inventory. DOE agrees that the “taking account” language can limit DOE's transfers: To the extent that sales under the Russian HEU Agreement are causing impacts on an industry, DOE must consider those impacts when assessing the possible impacts of a transfer it contemplates pursuant to section 3112(d). The discussion above is consistent with that view.
Finally, commenters argued that section 3112(b) sales have less impact, relative to the amount of uranium, than DOE's section 3112(d) transfers because they are capped, predictable, and transparent. DOE notes that the cap was 10 million pounds in 2002 and has now increased to 20 million pounds. Neither DOE's section 3112(d) transfers nor the section 3112(b) sales have ever reached those scales, so it seems unlikely that simply having the cap would make a difference to the actual economic impact of the transactions. DOE does recognize that the predictability of supply is an important factor, and predictability or lack thereof can increase or decrease the impact of a program of transfers. The analysis below considers this factor. With respect to transparency, as distinct from predictability, DOE believes it provides at least as much public notice about planned section 3112(d) transfers as was available for section 3112(b) sales. The Department publicly announces its determinations, each of which reflects an amount actually to be transferred; and the Department has published an accounting of the quantities of uranium it has available for transfer. By contrast, section 3112(b) sales happened through a private entity that had no obligation to release data publicly about sales. The statutory limit on sales, being much larger than the sales that actually occurred, provided little information about how sales of Russian uranium would affect the markets in practice.
One commenter pointed out that Russian-origin material continues to be available from commercial sources. NIPC Comment of ConverDyn, Enclosure, at 4. DOE believes this commenter was referring to the 2008 amendment to the Suspension Agreement discussed in Section I.D.3.b. DOE will take account of any sales under the Suspension Agreement in the analysis below.
Several commenters suggested that DOE should utilize a quantitative annual cap on transfers. Although the specific proposals varied, several suggested a rate of approximately 5.0 million pounds U
These commenters appear to have two chief reasons for their proposal. First, the commenters seem to think the various limits they propose are, in fact, the outside bounds of what DOE can transfer consistent with section 3112(d). Thus they would have DOE keep transfers below their preferred limits to avoid material impacts. However, DOE does not believe a quantitative trigger—whether implemented as an annual cap or only as a guideline—is a necessary or appropriate way to analyze whether DOE transfers will cause adverse material impacts. In the past, DOE has stated that, as a general matter, the introduction into the domestic market of uranium in amounts that are less than ten percent of the annual fuel requirements for U.S. nuclear power plants should not have an adverse material impact on the domestic uranium industries.
Commenters also urge DOE to maintain a cap because they believe long-term certainty about the maximum scale of transfers would mitigate the impact of the transfers and help industry attract investors. DOE recognizes that certainty and predictability are important for planning investments and industrial activities, especially in industries like the uranium
For these reasons, DOE believes that whether the effects of a given transfer constitute an “adverse material impact” should not depend on a quantitative bright-line test, but rather should be based on an evaluation of potential impacts by examining a number of factors. Accordingly, this analysis considers the effects of DOE transfers using the following six factors:
While no single factor is dispositive of the issue, DOE believes that these factors are representative of the types of impacts that the proposed transfers might have on the domestic uranium industries. Not every factor will necessarily be relevant on a given occasion or to a particular industry; DOE intends this list of factors only as a guide to its analysis.
DOE notes two ways that these factors differ from the list of factors DOE provided in the March 2015 Notice of Issues for Public Comment. First, DOE has combined the first two factors listed in the NIPC, “market price” and “realized prices of current operators.” DOE continues to believe that the effect of DOE transfers in these two areas is a relevant consideration. However, DOE recognizes that market prices, in the abstract, will not always be directly relevant for assessing the impact on an industry. More important will be the prices that various industry members actually receive for their products or services, which under most circumstances is a function of both the change in price and the contours of the various contracts through which industry members sell their uranium. As DOE's focus is ultimately the effect on industry, it is appropriate to consider these two aspects of price together. Second, DOE has added a factor regarding the Russian HEU Agreement and Suspension Agreement. Although the analysis below, to a certain extent, considers these transfers as part of the discussion for all of the factors, DOE believes it is appropriate to discuss these two Agreements separately as well.
Several comments submitted in response to the March 2015 Notice of Issues for Public Comment refer to some or all of these factors. Uranerz Energy Corporation expressed its view that the six factors listed in the NIPC provide significant context for analyzing the impacts to the domestic uranium industries. NIPC Comment of Uranerz, at 1. Similarly, Fluor B&W Portsmouth (FBP), contractor to DOE for cleanup services at Portsmouth, noted that these factors are “reasonable and indicative of the types of impacts that DOE Transfers of Excess Uranium could have on the domestic industries.” NIPC Comment of FBP, at 3. Nuclear Fuel Services, Inc. (NFS), which conducts down-blending services for DOE through a subcontract with WesDyne, suggested that DOE should consider the potential impact of DOE transfers on the ability of DOE to meet nonproliferation and defense missions. NIPC Comment of NFS, at 2-3. While DOE agrees that these policy concerns can be significant to DOE's decision whether to undertake a given transfers, DOE does not believe these concerns are relevant to the prerequisite section 3112(d)(2) finding on whether DOE transfers will have an adverse material impact on the domestic uranium industries.
ConverDyn states that DOE should consider “displaced sales” as a separate factor. NIPC Comment of ConverDyn, at 6. DOE disagrees that this should be considered separately. DOE believes that displaced sales are an aspect of production at existing facilities. Thus, these considerations fit within that category and do not need to be considered separately. ConverDyn also commented that DOE appears to give double weight to prices by considering both “market price” and “realized price.”
In any case, it bears emphasis that DOE does not place extra “weight” on price or any other individual factor. DOE's analysis considers all the factors taken together as a whole. DOE has not assigned specific “weights” to the factors. To the extent that some considerations overlap multiple factors, DOE will take this into account in its analysis. ConverDyn also argues that the long-term viability and health of the industry factor should be “of minimal weight” because the Secretarial Determinations are only valid for two years.
In addition to the above discussion, several comments in response to the December 2014 Request for Information suggested additional factors that DOE should consider. DOE has chosen not to consider those factors in the manner commenters suggested, for the reasons given in the March 2015 Notice of Issues for Public Comment.
Several commenters also inquired whether the analytical method DOE is now articulating is consistent with the analyses supporting prior section
This section assesses the potential impacts of DOE transfers at the levels and for the purposes described above in Section I.D.1. The overall volume of transfers for cleanup services at Portsmouth and down-blending services in each year from 2015 to 2024 is provided in Table 3. Although this assessment focuses on the impacts of transfers in the next few years, parts of the analysis make assumptions about transfers under these programs in future years.
This assessment assumes that DOE transfers for cleanup at the Portsmouth Gaseous Diffusion Plant will continue at the preexisting rates through the first six months of 2015. Beginning in July 2015, DOE would transfer at a rate of 1,600 MTU per year of natural uranium hexafluoride. DOE has a finite amount of natural uranium hexafluoride. DOE anticipates that at this rate, this material would be exhausted in the year 2020. Transfers for down-blending services would decrease to a total of no more than 60 MTU of enriched uranyl nitrate at an assay of 4.95 wt-% in 2015 and each year thereafter. DOE assumes transfers for down-blending will continue at this rate throughout the next 10 years Together, the natural uranium and LEU to be transferred each year are the equivalent of 2,100 MTU contained in uranium concentrates, 2,100 MTU as UF
In addition to the transfers listed in Table 3, this assessment also includes potential impacts associated with transfers that are not subject to section 3112(d). Specifically, this analysis includes prior transfers of depleted uranium hexafluoride to Energy Northwest, prior and continuing transfers to the Tennessee Valley Authority of blended low-enriched uranium, potential future transfers of off-specification uranium, and potential future transfers of depleted uranium hexafluoride to GE-Hitachi Global Laser Enrichment.
Collectively, this assessment refers to the transfers described above as the “assessed case.” Consistent with the analytical approach described above, this section reflects comparison of two forecasts: one reflecting the state of each domestic uranium industry if DOE goes forward with transfers at this level, and one reflecting the state of each domestic uranium industry if DOE does not go forward with these transfers.
The domestic uranium mining industry consists of a relatively small number of companies that either operate currently producing mines or are in the process of developing projects expected to begin production at some point in the near future. These projects are mostly concentrated in the western states—in recent years, there have been producing facilities in Arizona, Nebraska, Utah, Texas, and Wyoming. Most uranium mining facilities are owned and operated by publicly traded companies based in the United States or Canada. According to DOE's Energy Information Agency (“EIA”), production from domestic producers in 2014 totaled approximately 4.9 million pounds U
The effect of DOE transfers on prices is one of the chief vehicles through which the transfers can cause impacts on an industry. Accordingly, DOE has considered numerous inputs to forecast how transfers in the assessed case will affect prices. DOE analyzes both market prices and the prices that, on average, industry actually realizes for its products. Realized prices may be more significant for assessing the impact of transfers, but, as discussed below, they are not necessarily the same as market prices at any given time.
As described above, market prices for uranium concentrates are generally described in terms of the spot price and the term price. Although there are other types of published uranium prices, these two prices are the ones most frequently used as the basis for pricing terms in contracts for the purchase and sale of uranium concentrates. This section discusses the potential impacts
DOE has reviewed several different estimates of the effect of DOE transfers on the market prices for uranium concentrates based on different economic models. These estimates appear in market analyses from four different uranium market consultants: ERI, TradeTech, NAC International (NAC), and UxC. DOE has reviewed and evaluated to the extent possible the methodology, assumptions, data sources, and conclusions of each of the market analyses.
DOE tasked ERI with estimating the effect of DOE transfers on the market prices for uranium concentrates. In the 2015 ERI Report, as in previous reports, ERI estimated this effect by employing two different types of model that rely on somewhat different assumptions and methods: a market clearing price model and an econometric model. For its market clearing price model, ERI constructs individual supply and demand curves and compares the clearing price with and without DOE transfers.
Several commenters requested that DOE subject the 2015 ERI Report to peer review.
After reviewing the 2015 ERI Report and ERI's explanation of its methodology, as well as comments such as those that provided additional or alternative forecasts of market prices, DOE believes that ERI's first methodology described above is reasonable for estimating the impact of DOE transfers in the long-term. The methodology is consistent with common economic principles applicable to a competitive market. In general in such a market, competition from DOE-sourced uranium can be expected to displace units of supply that have the highest marginal cost. Given buyers that demand uranium at the lowest price available, the displacement of those supplies would cause the price to decrease towards the highest marginal cost of the remaining supplies. However, some producers with relatively high marginal cost have entered into long-term contracts based at least partially on fixed price mechanisms. Under such circumstances, DOE-sourced uranium might not immediately displace units of supply with the highest marginal cost. Over the longer term, these fixed price contracts will eventually expire and the higher marginal cost producers would have to enter into new contracts at the then-prevailing market prices. Therefore, DOE believes the price for uranium concentrates reflects an ordinary price-setting mechanism over the long term.
In a market with elastic demand, calculating the effect of an addition to supply would be more complicated than ERI's analysis. ERI assumes a perfectly inelastic demand curve, and in that case the ERI analysis is consistent with the pricing mechanism just described. As stated above, it appears that the uranium concentrate market exhibits behavior suggesting that demand is relatively inelastic, but perhaps not completely inelastic. To the extent that demand is at all elastic, this would tend to dampen the price effect of DOE material. However, given that ERI's assumption about the market is conservative, in that it will tend to produce overestimates of the effect of DOE's transfers on prices, DOE believes it is reasonable for achieving the purposes of this analysis.
ERI relies upon an extensive collection of data about the production costs for various aspects of supply. ERI has explained the various sources from which it collects data about the different primary producers. ERI then applies a discounted cash flow analysis to determine an expected production cost. Where information is not available publicly, ERI makes assumptions based on information from similar production facilities. DOE believes that this approach would yield reasonably accurate data because most of the uranium producers are publicly traded companies that must disclose company financial and production information to
DOE tasked ERI with estimating the effects of DOE transfers under three scenarios.
ERI notes that uranium transfers do not necessarily impact the market at the time of transfer. In general, the market impact will take place at the point in time where the transfers displace commercial supply. This can be estimated based on the expected schedule for delivery as reactor fuel. Thus, even though most of the TVA BLEU and all of the Energy Northwest transfers have already taken place, ERI estimates that these transfers will affect the market at various times in the future based on the expected delivery schedule. 2015 ERI Report, 21-22. Given that these transfers are targeted for specific reactors on predictable time-frames, DOE believes it is reasonable to assume that these transfers affect the market at the point when they displace commercial supply.
The transfer rates analyzed by ERI for down-blending services and cleanup at the Portsmouth Gaseous Diffusion Plant are summarized in Table 4. The assessed case is included for reference. Transfers under the other three programs mentioned above are included in ERI's analysis but are not included in this table because they are the same under any of the scenarios.
Using its market clearing approach, ERI estimates that DOE transfers will have the effects listed in Table 5. For each year ERI included (2015-2024), the relationship between the amount of transfers under each scenario and the price effect is essentially linear. Compare Table 3.6 to Table 4.1 of 2015 ERI Report, 25-26, 45. This linearity is unsurprising, because the slope of ERI's cost curve does not change much as a function of supply at the levels of current supply. Therefore, the price effect of DOE transfers under the assessed case can be interpolated from ERI's estimates. Table 5 presents ERI's estimates of the price effect of DOE transfers for all three scenarios and DOE's interpolation of the price effect for the assessed case.
It is important to emphasize that this is not a prediction that prices will drop by the specified amount once DOE begins transfers following a new determination. A level of price suppression consistent with the estimate for Scenario 1 would, in this model, already be roughly reflected in the current market price because DOE is currently transferring uranium at that rate. 2015 ERI Report, 44. The price suppression that ERI estimates would persist under Scenario 3 is largely attributable to past DOE transfers, from which some of the uranium is still expected to be entering the market in future years. Similarly, if DOE begins transferring at the level of the assessed case, instead of at current rates, a positive effect on market prices of $0.60, compared to existing prices, could be expected in 2016, the first full year of DOE transfers at the rate of 2,100 MTU per year.
One commenter argues that the price effect described by ERI under Scenario 1 is not already built into current market prices and suggests that the price effect described by ERI should be cumulative. NIPC Comment of UPA, at 9. This commenter appears to misunderstand the nature of ERI's analysis. ERI's market-clearing approach is based on the economic principle that the market price will tend toward the competitive equilibrium price,
ERI also used its econometric model to estimate the effect of DOE transfers on the spot market price. As with ERI's market clearing price analysis, the relationship between the average volume of DOE transfers and ERI's estimated price effect over each time period is roughly linear. Thus, the price effect of transfers at the levels in the assessed case can be interpolated.
DOE notes that certain assumptions in the model seem relatively uncertain over the longer term. The basic nature of the model is that ERI calculated a functional relationship between published prices and certain supply and demand variables representing, in essence, uncommitted supply and demand. ERI established this relationship by means of statistical correlations between past prices and past supply and demand variables. The model then predicts future prices based on the future course of the supply and demand variables. However, forecasts of uncommitted supply and demand require assumptions not only about how supply and uranium requirements will evolve, but also about how suppliers and purchasers will vary their mix of long-term and short-term purchasing. In the short-term, the mix of long- and short-term purchasing can be predicted based on the mix in recent years and on the estimates of uncovered supply. Such forecasts become significantly less reliable for later years. Thus, for example, market consultant UxC provides only limited future projections of future contracting activity in its annual Uranium Market Outlook—[REDACTED]. UxC Uranium Market Outlook—Q4 2014, 63, 66 (2014). Consequently, while DOE believes that ERI's econometric model provides a reasonable estimate of the response of the spot price to DOE transfers in the near term, it believes estimates of this response in future years will be increasingly less reliable the further out in time the estimate.
Commenters urge DOE to distinguish between spot sales, term sales, and other types of “forward sales.” Cameco Corporation (Cameco) states that forward delivery contracts are “simply contracts along the forward price curve, which is essentially the spot price with a minor adjustment for carrying costs.” NIPC Comment of Cameco, at 3. Similarly, ConverDyn states that a new market has arisen for “buy and hold” or “carry trade” sales that should be characterizes as “an extension of the spot market to approximately a 3-year term.” NIPC Comment of ConverDyn, Enclosure, at 5. DOE recognizes that market participants use a range of contracts with characteristics that fall somewhere between the “traditional” term contracts and spot contracts described by commenters. EIA defines a “spot contract” to call for delivery of the entire contracted amount within one year. A “term contract”—of short, medium, or long term—involves one or more deliveries after one year. A contract that would be a “term contract” under this definition may influence either the spot market or the term market (as defined by UxC and TradeTech) more or less depending on various contractual terms such as length of time before initial delivery, number of deliveries, and the pricing mechanism. Consistent with this notion, and as noted above in Section II.E.2, sources other than the UxC and TradeTech offer price indicators for future-delivery contracts that appear to be similar to what commenters describe.
With respect to DOE transfers affecting the spot market, ERI assumes that 50% of DOE transfers for cleanup at Portsmouth are introduced through term contracts. 2015 ERI Report, 34. ERI's assumption relies in part on statements by Traxys North America LLC (Traxys), the entity that currently purchases the material that DOE transfers to Fluor B&W Portsmouth for cleanup work at the Portsmouth Gaseous Diffusion Plant. Traxys has stated it sells as much as 90% of the material it purchases from Fluor under forward delivery contracts that do not affect the spot market. Declaration of Kevin P. Smith,
DOE notes that ERI's assumption that only 50% of these sales enter the term market is conservative, in that Traxys claims this figure is closer to 90%. In any case, if in fact more or less than 50% of DOE transfers for Portsmouth cleanup in fact are not sold through term contracts—in that they do not affect the term price indicators published by UxC and TradeTech—such an error in ERI's assumptions would simply decrease the reliability and certainty of ERI's econometric forecast in the mid- to long-term.
ERI assumed that the other past transfers included in the assessed case—such as the blended LEU provided to the TVA—are effectively on term contracts. Commenters do not contest that characterization, and DOE believes it is reasonable to assume these materials are not appearing on spot markets.
The Uranium Producers of America (UPA) attached to its comment in response to the RFI a market analysis it commissioned from TradeTech, LLC, a uranium market consultant. RFI Comment of UPA, Attachment, TradeTech, “UPA DOE Material Transfer Study” (2015) (hereinafter “TradeTech Report”). A summary of TradeTech's estimates appears in Table 7. TradeTech explains that it estimated the price effect of DOE transfers using its proprietary Dynamic Pricing Model. This model uses an econometric forecasting approach to estimate the equilibrium between two dimensions TradeTech calls “active supply” and “active demand.”
DOE understands this “reduction” to mean, as with ERI's analysis, not an additional decrease in prices beginning in January 2015, but a continued price suppression. In other words, TradeTech suggests that if DOE ceased transferring at current rates then prices could be higher by an average of $2.43 per pound in 2015 and 2016.
TradeTech also provides estimates for the effect of DOE transfers at several decreased transfer rates. If DOE transfers decreased to 75% of current levels, TradeTech estimates that the spot price would increase by an average of $0.53 per pound between January 2015 and December 2016. TradeTech Report, 26.
TradeTech's forecast for the scenario in which DOE continues transferring uranium at current rates is fairly similar to the forecast ERI generated for that scenario using its econometric model. This apparent agreement could be taken as confirmation that the forecasts are reasonable. Alternatively, the agreement between the two could just indicate that TradeTech and ERI have applied similar mathematical tools to similar inputs and modeling assumptions. It does not necessarily validate either the assumptions or the choice of mathematical model.
As with ERI's econometric model, DOE notes that TradeTech's assumptions about the amounts of uncommitted supply and demand seem relatively uncertain over the longer term because they depend on the actions of individual market participants that may reflect economic influences about which little information is available. For example, a strategic buyer or seller of uranium does not have to buy uranium at a given time; that participant may or may not contribute to uncommitted supply and demand depending on current prices, the participant's expectations of prices, and other factors. In responding to the possibility of such effects, ERI assumes that uncommitted supply and demand will repeat their courses of recent years. Meanwhile TradeTech introduces a “quadratic coefficient to capture market exuberance, which measures market momentum.” TradeTech Report, 14. Although the mix of long- and short-term purchasing can likely be predicted in the short-term based on prior contracting activity, forecasts based on this type of data would be significantly less reliable in the long-term.
For reasons like these, although TradeTech's forecast based on uncommitted supply and demand may provide a reasonable estimate of the price response of DOE transfers in the short term, DOE believes the price response over the medium- and long-term is most appropriately estimated and forecast using information and assumptions about overall demand and supply. ERI's “market-clearing” model is a reasonable implementation of this approach.
Fluor-B&W Portsmouth attached to its comment in response to the RFI an April 2014 market analysis from NAC
Some commenters expressed concern that DOE's 2014 Determination relied on information from Fluor-B&W that was outdated and that, because Fluor-B&W is not a regular participant in uranium markets, warranted no reliance. DOE recognizes that the NAC Report is based on data that are now more than one year old. DOE's analysis relies on information from myriad sources, described throughout, and uses the data currently available. Data from EIA and other sources may lag the market by as much as several months, but given the rate at which these markets change, it is appropriate to rely on data after such a limited delay.
NAC developed a range of estimates of the impact of DOE transfers utilizing its production cost estimates at three different rates: 2,800 MTU per year, 2,400 MTU per year, and 10% of U.S. reactor requirements. NAC Report, 3-21 to 3-22. First, NAC applied a methodology it believes approximates ERI's approach to its own cost estimates. Specifically, NAC identified the incremental cost of the last property needed to meet demand in a given year based on total supply and demand. NAC Report, 3-22. NAC then explains that because long-term contracts with fixed pricing mechanisms have allowed some high-cost producers to produce ahead of lower cost supply, it believes a better approach is to base the model on uncommitted supply and demand. NAC then applies a multiplier to these estimates to account for additional incremental costs not included in its site forward production costs estimate. These additional costs include increased site forward costs due to operation at less than nominal capacity, taxes, corporate overhead, and variations in the required rate of return. NAC Report, 3-23. NAC also applies a time shift to the cost trend to account for the fact that producers need a price signal before investing in a new production center—
DOE
In addition, DOE does not agree that it is appropriate to focus on uncommitted supply and uncommitted demand, as opposed to total supply and demand, in the manner described by NAC. Entities other than primary producers and reactor owners/operators participated in the uranium concentrates market. NAC's estimate of uncommitted supply and demand appears not to incorporate these other participants.
Cameco Corp. attached to its comment in response to the RFI a market analysis it commissioned from UxC, another uranium market consultant. RFI Comment of Cameco Corp., Attachment, UxC Special Report, “Impact of DOE Inventory Sales on the Nuclear Fuel Markets” (January 2015) (hereinafter “UxC Report”). A summary of UxC's
Using these two models, UxC estimates the effects of DOE transfers on prices during the period between 2012 and 2014. UxC provides two estimates. It derived the first, which it labels the “incremental approach,” by running its models from 2011 onwards, with and without DOE transfers. It prepared the second, which it calls the “total impact approach,” by running its models from 2008 onwards. UxC's models generally ascribe to DOE's transfers an accumulating effect on price, because, according to UxC, past transfers “have a longer-term effect on market perceptions among both buyers and sellers.” UxC Report, 5. Thus, by running its models from 2008 onwards, UxC produces 2012 estimates that reflect cumulative effects it ascribes to transfers between 2008 and 2011. UxC's “incremental” estimate is that between 2012 and 2014 DOE's transfer reduced the spot price by an average of $4.50 per pound and the term price by an average of $2.88 per pound. UxC's “total impact” estimate is that between 2008 and 2014 DOE's transfers reduced the spot price by an average of $7.11 per pound and the term price by an average of $5.10 per pound. UxC Report, 6-7.
UxC also forecasts the effect of continued DOE transfers at current rates for the period 2015 to 2030. UxC predicts that such transfers in the near and medium terms would reduce the spot price by an average of $5.78 per pound. UxC projects that this effect will change slightly in the medium term as market prices start to recover. Specifically, DOE transfers (at current rates) would reduce the spot price between 2018 and 2030 by an average of $4.47 per pound. UxC also notes that the former number is larger relative to the expected price of uranium than the latter number (14.1% versus 7.1%). UxC Report, 10. UxC forecasts that DOE transfers (at current rates) in the near and medium terms would reduce the term price by an average of $4.86 per pound. Between 2018 and 2030, DOE transfers are predicted to reduce the term price by an average of $5.30 per pound. Again, the near and medium term impact is larger in relation to the expected price (9.0% versus 7.1%). UxC Report, 11.
UxC puts particular emphasis on the interrelationship between the uranium and enrichment markets. UxC states that uranium and SWU are “substitutes.” Thus, UxC uses enrichment prices as an input into its uranium concentrate price forecast, and vice versa. UxC Report, 5, 8, 17. As described in Section II.A.5, DOE understands that this interplay can take several forms. First, to the extent that enrichers have unsold enrichment capacity, they may apply that excess capacity to underfeeding and/or re-enriching DUF
The other market analyses do not appear to take these interactions into account.
Furthermore, UxC's forecast for the price effect attributed to DOE transfers in coming years is substantially higher than what any of the other reports predict. That difference may be a reason to scrutinize UxC's predictions. In addition, aspects of UxC's models, as explained below, appear to make them less reliable in this regard, especially for the task of attributing price effects to a discrete element of supply, specifically DOE's transfers. UxC uses several exogenous variables to account for subjective, unquantifiable phenomena such as “market participants' general perception of the industry outlook” and “changes in market psychology.” These exogenous variables appear to play key
In light of these market analyses and its review of them, DOE concludes that transfers under the assessed case will continue to exert some downward pressure on the market price for uranium concentrates. DOE believes $2.70 per pound is a reasonable estimate of how much downward price pressure transfers under the assessed case will contribute on average over the next decade. In 2016 and 2017, the price impact will be even lower, between $2.10 and $2.20 according to ERI's market clearing analysis, and approximately $1.90-$2.00 according to ERI and TradeTech's econometric forecasts. To be cautious, DOE will base its analysis on the full amount of $2.70.
The significance of price suppression at this level depends, at least in part, on market price. Recent spot and term price indicators published by UxC on March 30, 2015, were $39.50 per pound U
Several sources generally predict an increase in market prices over the next several years. ERI notes that term prices are expected to increase in the future, but does not provide a specific forecast. 2015 ERI Report, 46. ERI's econometric model, however, does show an increase in the spot price. Specifically, ERI forecasts that spot prices will recover over the course of 2015-2018 eventually settling in the $52-57 range after 2019. 2015 ERI Report, 52. TradeTech's Exchange Value spot-price forecast increases to approximately $50 as early as June 2016, even with DOE transfers. TradeTech Report, 20. UxC's estimates of the effect of DOE transfers assume that market conditions will improve in the medium term. [REDACTED]. Figures 5 & 6, UxC Report, 11. In its annual Uranium Market Outlook, UxC provides a more detailed explanation of its price forecast, which generally predicts an increase in price over the next 10 years. UxC Uranium Market Outlook—Q4 2014, 111-19 (2014). [REDACTED].
Using these price forecasts, it is possible to project the estimated price effect in future years as a percentage of the expected market price. ERI's market clearing price model predicts that the price effect will remain relatively stable over the next years. As prices increase, this price effect will represent a smaller proportion of the then-prevailing market prices. As spot prices increase above $50, which DOE expects will happen by 2019 or 2020, the long-term price effect attributable to DOE transfers would represent approximately 5.4% of the spot price.
A principal mechanism through which a change in market price could impact the domestic uranium mining industry is through the effect on the prices that various production companies actually receive for the uranium they sell—the “realized price.” The market prices published by TradeTech and UxC are based on information about recent offers, bids, and transactions. Thus, the market price is a snapshot of contracting activity at the time of the publication. It includes activity that does not involve the domestic uranium producers—
Most deliveries of uranium concentrates take place under term contracts. According to contracting data published by UxC, utilities made spot purchases of [REDACTED].
It is also significant that long-term contracting volume has not been uniform in recent years. [REDACTED].
These observations are particularly significant because uranium prices have declined in recent years and only recently began to recover. In 2014, the spot price reached a low of $28.25, after decreasing from a high of $136.00 in 2007. Compared to the low of $28.25, a price effect from DOE transfers of $2.70 per pound would represent 9.6%. However, the actual effect experienced by a primary producer would be the proportionate change in its realized prices. As mentioned above, several of the market analyses that DOE reviewed forecast that prices will be increasing substantially in the next few years and should reach $50 by 2019 or 2020. Consistent with those forecasts, spot prices are currently 16-20% higher than they were one year ago. Because the low prices of 2013-2014 were only temporary, realized prices for most producers can be expected to be more in line with the longer-term trend of prices. Consequently, the price effect of DOE's transfers should be regarded in comparison to the longer-term trend rather than to the recent past of especially low prices. Furthermore, based on current trends in term contracting, there will be relatively few new term contracts entered into on the basis of current prices and they will likely have a shorter average duration than in years past. Thus, although the price effect attributable to DOE transfers in the term market would have an effect that would persist through the life of any new term contracts, this effect is likely to be limited in the near term.
ERI estimates the prices realized by U.S. producers by gathering information from public filings representing approximately 95% of U.S. production. 2015 ERI Report, 60-61. Realized prices declined for most primary producers in 2014, an outcome that presumably reflects the fact that market prices had, by 2014, been declining continually for several years. 2015 ERI Report, 61. Still, ERI estimates that several producers achieved realized prices in 2014 well above the average spot price over the course of the year. At least one producer achieved a realized price well above the average term price for 2014. 2015 ERI Report, 61.
ERI reports that some mining companies have negotiated contracts that base the price paid at least partially on a fixed or base-escalated pricing mechanism. As an example, Cameco has reported that the price sensitivity of its current contract portfolio is about 50% of any change in spot market price. ERI estimates that less than 30% of U.S. production currently comes from companies that are effectively unhedged against changes in spot price. 2015 ERI Report, 60-61.
TradeTech also provides its estimates of the decline in realized price for several producers—both U.S. and foreign. Although TradeTech does not provide specific figures, it provides information on several firms in chart form. It appears from the chart that among the firms for which TradeTech provides estimates, realized prices in 2013 varied from as low as about $38 to as high as about $57. For most producers, there was a decline in realized price between 2011 and 2013. The magnitude of that decline ranges from approximately $12 to as low as $2 or $3. TradeTech Report, 13. TradeTech notes that one reason for declining realized prices is the expiration of long-term contracts signed when prices were substantially higher. TradeTech Report, 12.
NAC similarly notes that some higher cost suppliers have locked in higher prices through fixed price contracts that allow them to realize prices greater than current market prices. NAC Report, 3-22. Although NAC estimates the effect of DOE transfers on market price, as described above, NAC does not provide specific estimates of the effect on the price realized by individual producers.
EIA reports several figures that are relevant to the prices realized by current producers. EIA reports that the weighted average price in sales directly from U.S. producers in 2013 was $44.65. EIA, 2013 Uranium Production Report, 7 (2014). Similarly, EIA reports that the weighted average price paid by U.S. reactor operators in 2013 was $51.99 per pound U
EIA provides data about sales using different pricing mechanisms. EIA reports that of the approximately 23.3 million pounds U
Many companies report their realized prices in public filings. Based on average market prices over the time-frame these filings cover, this information can be used to infer the extent to which each firm is exposed to market price fluctuations. DOE has reviewed public filings with the SEC and other public financial information for several U.S. producers. This information is summarized in Table 10. Based on this information, it appears that only two producers sell U
Contracting decisions
In light of all these factors, DOE concludes that the anticipated effect of its transfers on market prices will tend to overstate the effect on the domestic uranium mining industry in terms of actual realized price. Although public filings suggest that only 15% of producers are unhedged against fluctuations in the spot price, DOE will conservatively assume that 30% of the industry is not insulated from these fluctuations due to preexisting long-term contracts as ERI suggests. Further assuming that this insulation is equivalent to 50% exposure to the changes in market price, the average price effect on the domestic uranium industry's realized prices in the near term would be closer to $1.75. DOE notes that this price effect is relatively small when compared to the market prices forecasted for the next several years—between 3.5% and 4.5% of expected spot market prices. That said, consideration of the effect on realized prices on its own is not sufficient to determine whether the impacts will be material. The implications of transfers for the factors discussed in the next four sections have also been considered.
DOE believes that primary producers consider a range of different inputs in determining whether to decrease, continue, or increase production at currently operating facilities. Market prices are certainly one element of this calculation, but producers also consider contractual obligations (and what these contracts may mean for realized prices), projections about future prices, and the various costs associated with changing production levels. In order to forecast how DOE transfers will affect production levels, DOE has considered how producers have responded to price changes in the past. Some of the primary inputs in these decisions are the relationship between market prices and production costs, and expectations about future price trends.
EIA reports data on production levels in the domestic uranium industry on a quarterly and annual basis. EIA's most recent quarterly report provides preliminary data for 2014. U.S. primary production in 2014 stood at 4.9 million pounds U
Since 2009, four new operations have begun production in the United States: Willow Creek in 2010, Hobson/Palangana in late 2010/early 2011, Lost Creek in 2013, and Nichols Ranch in 2014. ERI also reports that one
ERI presents a chart showing the price levels at the time cutbacks were announced at various U.S. suppliers. ERI reports price points for cutbacks at four operations: $45 per pound in the spot market for conventional mines in Utah; $40 per pound in the spot market for two in-situ-leach operations; and $35 per pound in the spot market for additional conventional mines and a uranium mill. 2015 ERI Report, 62.
ERI then estimates average production costs for existing mines by referring to EIA's published data on production expenditures across the uranium industry. Using a three year average to smooth out year-to-year differences, ERI notes that average production costs have remained fairly constant since 2009 at about $40 per pound. 2015 ERI Report, 63. ERI further reports that it estimates production costs at U.S. in-situ-leach facilities to range from the low $30s to the mid $40s per pound. ERI concludes that the pattern of cutbacks and estimated production costs “do not seem to indicate that adding back the $3 per pound price effect attributed to all DOE inventory material for Scenario 1 would move current prices enough to cause U.S. producers to ramp well field development and production activities back up.” 2015 ERI Report, 64. ERI further notes that the spot price would remain near $40 per pound and “may still not be sufficient for higher cost ISL producers to restart well field development or higher cost conventional mines to resume mining activities, and likely would not have prevented the decisions to cut back when prices declined to $35/lb in mid 2013 and then below $30/lb in mid 2014.” 2015 ERI Report, 64.
The UxC Report does not provide any specific estimates of production levels or costs at currently operating facilities. However, UxC has developed production cost data elsewhere in its annual report on uranium suppliers and a 2013 production cost study. UxC Uranium Suppliers Annual—December 2014 (2014); UxC Uranium Production Cost Study (2013). [REDACTED].
The TradeTech Report predicts a “potential reduction in the number of market participants.” TradeTech Report, 21. It applies the price effect it estimates for DOE transfers to a hypothetical uranium producer with a production cost of $47.41 per pound. See Figure 15 of TradeTech Report, 22. TradeTech does not apply its estimate to any particular producer. TradeTech does, however, provide estimates for the production costs of several firms in both 2011 and 2013.
NAC provides estimated production cost ranges for segments of current supply, but it does not directly estimate the effect of DOE transfers on production levels. NAC Report, 3-9 to 3-11. Specifically, NAC provides a chart showing the breakdown of worldwide operating production capacity [REDACTED]. NAC Report, 3-10. DOE notes that this chart does not provide separate estimates of production from U.S. facilities, although NAC does state that [REDACTED]. NAC Report, 3-11.
A commenter noted that production in the recent past is not an accurate indicator of how DOE's transfers affect the mining industry, because current production reflects conditions of three or four years ago when the investment decisions were made. This commenter suggested that exploration data would be a better guide for assessing how industry is responding to current conditions. In addition, the commenter submitted information it received from Cameco indicating that production at Cameco's two main areas will decline from 2.7 million pounds in 2014 to 1.7 million pounds in 2015. This information is generally consistent with the data provided by the various reports summarized above.
DOE recognizes that large-scale changes in production can take several years, and for that reason among others it does not base its analysis simply on the fact that current production is comparable to 2013 production. At the same time, DOE notes that declines in production in 2015 are not, in their entirety, reasonably attributable to DOE's transfers. According to the commenter, the effect of market conditions takes three to four years to be fully manifest in production levels. If so, then a decline in production in 2015 would presumably result primarily from the large-scale market changes in the second half of 2011 and then in 2012 as a result of the Fukushima disaster. To forecast the effects reasonably attributable to DOE's transfers, a more careful analysis like that described below is more appropriate.
As actual production levels and costs are usually proprietary information, DOE must generally rely on estimates. The production cost estimates from TradeTech, NAC, and UxC are all generally consistent with ERI's conclusions. Each market analysis describes production costs falling within a similar range.
As noted above, based on the current spot price of $39.50
To summarize, it does not appear that the price effect of DOE transfers would cause realized prices to be below production costs at any particular facility. DOE recognizes that receiving prices barely above production costs would not provide enough return to justify investing in production, and a producer needs to receive a certain amount of margin. The TradeTech Report suggests 10% is an appropriate margin. But elevating the threshold for these mines from production cost to production cost plus 10% would not alter the conclusions discussed above.
The estimates in the preceding paragraph are based on a comparison of expected realized prices of specific mines and estimates of production cost at those mines. However, DOE notes that this is a somewhat oversimplified comparison. Decisions regarding whether to increase or decrease production are based on a number of considerations, of which the instantaneous market price is only one. Recent production data provides some evidence that market prices are not the sole consideration. Despite the fact that market prices were at their lowest levels in recent memory, EIA's most recent quarterly report states that U.S. primary production in 2014 was higher than in any calendar year since 1997. Even while production ceased at some facilities, production began for the first time at others. Meanwhile, producers with production costs above the average spot price in recent years have continued operations. One of those considerations is included in the above discussion, namely the difference between realized price and market price. In addition, DOE believes that this behavior is related to the significant cost and time lag involved in ceasing or slowing production at an existing facility. Due to these facts, DOE believes that production decisions are likely to be based on future expectations about market prices and contracting trends in addition to current market prices.
Given that removing the price effect associated with DOE transfers is not likely to be enough to materially change the relationship between price and cost for any particular producer and that production decisions are based on additional considerations that include future expectations about market prices and contracting trends, DOE agrees with ERI's conclusion that adding back the price effect of DOE transfers would not move current prices enough to cause U.S. producers to increase production at existing facilities.
Some commenters objected that this conclusion is irrelevant. However, it is an appropriate implementation of the analytical approach discussed above, in which DOE assesses the impact reasonably attributable to its transfers. To do so, DOE compares the likely state of affairs with transfers and without DOE transfers. The conclusion that continuing transfers under the assessed case would not result in U.S. production's being markedly lower than it would in the absence of DOE transfers constitutes such a comparison.
DOE has considered information from EIA reports relating to employment in the domestic uranium production industry. EIA's most recent Uranium Production Report states that employment stood at 1,156 person-years in 2013, 1,196 person-years in 2012, and 1,191 person-years in 2011. EIA, 2013 Uranium Production Report, 10 (May 2014).
In its analysis, ERI compared EIA's employment figures with changes in uranium spot and term prices. Based on a statistical correlation, ERI infers that employment responds to changes in price. 2015 ERI Report, 73. ERI then uses this correlation to estimate that the decrease in uranium prices over the course of 2014 resulted in a loss of 114 person-years from the 2013 value of 1,156. 2015 ERI Report, 55. ERI then estimates that the price effect it attributes to DOE transfers lowered employment by 41 person years in 2013, and 44 person years in 2014. 2015 ERI Report, 56. ERI further estimates that price effects due to DOE transfers at the levels described in Scenario 1 would result in an average employment loss of 42 person years over the next 10 years. For Scenario 2 and 3, ERI estimated that the average employment loss would be 39 and 21 person years, respectively. Again, it is important to note that this estimate is not a prediction that the uranium production industry under Scenario 1 would shed 42 jobs in 2015 and each subsequent year. Instead, this figure reflects ERI's estimate that total employment in the industry would be higher by an average of 42 person-years without DOE transfers compared to with DOE transfers.
Several commenters asserted that employment has decreased in recent years as a consequence of decreases in uranium prices.
Several uranium producers provided data regarding their employment. The combined figures from several producers come to employment of 845 in 2012 and 424 in 2014. NIPC Comment of UPA, at 7-8.
DOE nonetheless does not believe that employment in the uranium mining industry has decreased by half since May 2012. That claim runs contrary to reporting by EIA that employment was 1,191 in 2011, 1,196 in 2012, and 1,156 in 2013. EIA, 2013 Uranium Production Report, 10 (May 2014). This is only a 3% decline between 2011 and 2013. Although EIA has not yet reported uranium employment in 2014, DOE notes that production levels in 2014 were very close to levels in 2013 and that one new facility began operation in 2014. Thus it seems reasonable to assume that employment levels were similar as well. EIA Domestic Uranium Production Report Q4 2014, 3-6 (January 2015).
DOE believes the EIA reports on uranium-industry employment are more reliable than the commenter's submission on this point. In general, the EIA collects its data through a survey, responses to which are mandatory. The survey terms are well defined and, with respect to employment, should capture the relevant employment. By contrast, the commenter describes its data as counting “current employment activities.” It is not clear which employees are included in the count or whether the inclusion criteria are even uniform across companies. More significantly, the commenter's submission does not encompass the whole domestic industry. A number of the companies represented did decrease production, but the commenter's figures appear not to include some mines that have increased production.
Even if industry employment had decreased by half since 2012, for predicting the effect of DOE's transfers in the assessed case it is important to understand what portion of recent employment decreases is reasonably attributable to past transfers. No commenter attempted such an estimation. While it is difficult to infer causal connections between employment and any particular market phenomenon, DOE thinks it is likely that most if not all of the reduction in employment in the mining industry since 2011 can reasonably be attributed to the downturn in the demand for uranium, primarily due to the Fukushima events.
DOE believes that ERI's method for attributing an employment effect to DOE transfers is reasonable. ERI's method is based on an empirical observation that prices (particularly the two-year moving average of price) have been strongly correlated with employment over the last decade. This correlation exists despite the remarkable fluctuations in market conditions that have taken place
ERI forecasts that employment will be persistently lower by 42 person-years over the next decade if DOE transfers uranium at the rates specified in Scenario 1. While the assessed case involves significantly lower rates, DOE uses the Scenario 1 forecast in order to forecast employment effects conservatively. A decrease of 42 person-years is relatively small—approximately 4%—compared to overall employment. Notably, the industry has weathered significantly larger changes in employment in the past. Between 1998 and 2001, the industry went from employment at 1120 to 423. EIA, Domestic Uranium Production Report (2005). Similarly, from 2008-2009, the industry went from 1563 to 1096; a drop of 467 in a single year. EIA, 2013 Uranium Production Report, 10 (May 2014). Additionally, ERI points out that employment for 2014 likely declined by 114 person-years, even though DOE transfers did not change appreciably from 2013 to 2014. These comparisons indicate that the small change attributable to DOE's transfers will be well within the range of employment fluctuations that independent market conditions produce.
Some comments in response to the RFI, mentioned above, warn that employment losses may lead to a loss of intellectual capacity. The relevant employees have technical skills that can take time to acquire. If the lost employees have retired or moved into other fields, it may not be possible to restore them even as demand increases. While in principle replacements could be trained, these commenters argued that employment losses have been so severe that the industry is losing the capability to train replacements. Commenters provided no evidence to support these claims. Moreover, these commenters' suggestion is inconsistent with the industry experience of the past 20 years. The industry has more than once in the last 20 years experienced decreases in employment an order of magnitude above what ERI attributes to recent DOE transfers, and has maintained and, when appropriate, increased production. Thus, DOE does not expect its transfers in the assessed case will cause employment losses that threaten the intellectual reserves of the industry. DOE believes that the current levels of employment (and the expected future levels of employment) adequately protect against loss of this resource.
As stated above, ERI reports that four new production centers began operation since 2009: One in 2010, one in late 2010/early 2011, one in 2013, and one in 2014. In addition, one new production center—Peninsula's Lance project—is expected to begin operations in 2015. 2015 ERI Report, 57. ERI explains that the new production centers may have been able to begin operations only because they were supported by fixed price term contracts that were signed when prices were substantially higher than they are currently—
Based on the above, ERI concludes, “[i]t does not appear that removing the DOE inventory from the market and adding back the $2 to $3 per pound price effect attributed to the DOE inventory material . . . would necessarily increase current prices enough to change the situation regarding the viability of new production centers in the U.S.” 2015 ERI Report, 62. However, ERI reports that some lower cost ISL projects in the U.S. may be able to move forward at current prices. 2015 ERI Report, 62.
NAC provides estimates of the site forward cost, including rate of return, for ten properties it considers to be under development.
The UxC Report does not provide any specific estimates of production levels or costs at planned facilities. However, UxC has developed production cost data elsewhere in reports cited. UxC Uranium Suppliers Annual—December 2014 (2014); UxC Uranium Production Cost Study (2013). [REDACTED]. UxC Uranium Production Cost Study, 62, (2013). [REDACTED].
As with existing production centers, UxC [REDACTED].
EIA reports that production expenditures were $168.8 million in 2011, $187 million in 2012 and $168 million in 2013—when spread across annual production, these numbers represent approximately $41 per pound in 2011, $43 per pound in 2012, and $36 per pound in 2013. EIA, 2013 Domestic Uranium Production Report, 7, 11 (2014). Including costs related to drilling between 2011 and 2013 raises this figure by about $56 million per year per pound, and including land, exploration, and reclamation costs in those years increases these figures by a further $96 million per year. EIA, 2013 Domestic Uranium Production Report, 11 (2014). Some commenters argued that the average cost for a U.S. producer is $67.10 per pound—apparently the sum of the EIA figures for all costs, divided by the total of recent production. NIPC Comment of UPA, at 7. DOE is not convinced that this simple aggregation provides an accurate estimate of production costs. For one thing, some expenses, like reclamation, occur after production and therefore should be attributed to past production (sometimes long-past production) rather than current production. Some expenses, like exploration costs, relate to future production. U.S. production has varied over time, and will continue to do so. So accounting for past and future production costs as part of the cost of current production can lead to error. DOE believes a more reliable method for estimating the cost of
As with production at existing mines, DOE believes that production decisions are more likely to be based on future expectations about market prices and contracting trends than on a straightforward comparison of current market prices to production cost. The comments received were consistent with DOE's understanding. New production centers are a long-term investment, and new facilities require several years of lead-time before production can begin. Since market prices fluctuate over time, many producers are unwilling to bring a new facility into production without long-term supply contracts in place.
TradeTech's report included an estimate that DOE's transfers, at the 2,705 MTU per year rate, “could be the deciding factor” in whether a hypothetical miner continues production. TradeTech Report, at 22. The hypothetical mine has a marginal production cost of $47.41 per pound, a 50% exposure to the spot market price, and a long-term component to its realized price of $50. In addition, TradeTech assumes that the hypothetical mine requires a 10% margin to justify production. Observing that prices in the next couple years are forecast to range from $40 to $55 per pound, and that DOE transfers at 2,705 MTU per year would in TradeTech's estimate reduce prices by on average $2.43 per pound, TradeTech concludes that the $2.43 per pound difference “could” matter for the hypothetical mine.
Some commenters characterized the TradeTech report as “overwhelming evidence” that DOE's transfers are “threatening the very existence of several U.S. producers.” NIPC Comment of UPA, at 4. These commenters urged DOE to rely on TradeTech's hypothetical example for assessing the consequences of DOE transfers for future production. NIPC Comment of UPA, at 7. DOE does not consider this example appropriate for that purpose, and does not think it constitutes evidence that DOE's transfers actually threaten the viability of U.S. producers, for several reasons. The analysis appears to compare current production costs at the hypothetical mine to near-term spot prices. DOE believes a producer would actually make its long-term investment decisions on the basis of expectations about prices over the longer term and the availability of long-term contracts at an acceptable price. TradeTech's example does not reflect either of these factors. In addition, the hypothetical example uses assumptions that do not appear well justified. The hypothetical mine has average production costs of $47.41 per pound.
Consistent with the analytical approach outlined above, DOE's task is to assess what the state of affairs would be with and without transfers in the assessed case. DOE agrees with ERI's conclusion that whether DOE makes these transfers is not likely to affect the economic viability of new U.S. production centers in development. The production cost estimates from NAC and UxC are consistent with ERI's conclusions. ERI reports that there may be some low-cost ISR production centers that can move forward at current market prices. This is consistent with estimates from NAC and UxC's of production costs at specific facilities that are currently under development. The only production center expected to begin operations in the near future is Peninsula's Lance. Both NAC and UxC estimate [REDACTED]. For such a project, DOE transfers may affect overall revenues but seem unlikely to change whether the project proceeds. [REDACTED]. Compared to current term market prices, one or two projects have production costs that are close to or just above the current market price, but in light of the low rate of term contracting activity in the next one or two years, these projects are unlikely to settle on contracts at the current term price.
DOE recognizes that, as some commenters explained, there has been limited investment in uranium projects in recent years.
As described above, ERI notes that U.S. industry production has risen since the start of DOE uranium inventory transfers for Portsmouth cleanup in December 2009. ERI also notes that four new operations began production since 2009, and one additional production center is expected to begin operations in 2015. 2015 ERI Report, 57.
ERI also presents its future expectations regarding demand for uranium. ERI's most recent Reference Nuclear Power Growth forecasts project global requirements to grow to approximately 182 million pounds annually between 2018 and 2020, approximately 15% higher than current requirements. Global requirements are expected to continue to rise to a level of 203 million pounds in 2025, approximately 28% higher than current
A variety of other sources predict substantial increases in reactor requirements and/or demand.
Other sources also generally agree with ERI's forecast for supply. UxC's annual Uranium Market Outlook projects [REDACTED]. UxC Uranium Market Outlook—Q4 2014, 68 (2014). [REDACTED].
In addition to a predicted increase in demand, several sources predict a recovery in either spot or term uranium prices—or both. These forecasts are discussed above in Section IV.A.1, but they generally predict an increase in spot price to $50 by 2019 or 2020, and to $55.00 or $60.00 in the years thereafter.
Finally, DOE recognizes that the predictability of transfers from its excess uranium inventory over time is important to the long-term viability and health of the uranium industries. ERI has noted the importance of predictability “for long-term planning and investment decisions by the domestic industry.” 2015 ERI Report, 100; 2014 ERI Report, 60-61. Some commenters also stated that DOE transfers should be predictable. RFI Comment of UPA, at 2; RFI Comment of Cameco, at 2. Other comments stressed the importance of predictability to permit the industry to engage in long-term planning. NIPC Comment of Cameco, at 4; NIPC Comment of UPA, at 5. DOE notes that the upper scenario considered by ERI would represent continued transfers at rates consistent with the May 2014 determination and roughly similar to the May 2012 determination. Compare 2015 ERI Report, 25, with 2014 ERI Report, 28. Thus, DOE's section 3112(d) transfers have been stable for three years: DOE has transferred at essentially the rate identified in the May 2012 determination. The series of Secretarial Determinations has, DOE believes, made these transfers predictable. While the assessed case involves a lower rate of transfers, DOE does not believe a reduction of this magnitude will cause harmful uncertainty for the industry.
DOE recognizes that, as with any prediction, the future course of events may differ from forecasts. But section 3112(d) itself instructs DOE to predict the impact of its transfers, in that the statute requires a determination that a transfer “will not” have adverse material impacts on the domestic industries. Forecasts of reactor requirements should be fairly reliable, because constructing a nuclear reactor is a major investment requiring years to come to fruition and a reactor then operates for decades. A reactor that will need uranium in the next decade must either exist now or be at least in the planning stages now. Conversely, if a reactor is operating now, its operator has strong incentives to keep it running as long as possible, and the licensed lifetimes for reactors are known. Therefore, barring extreme events such as the Fukushima disaster and various large-scale policy responses to it, DOE believes it is possible to forecast reactor requirements with a fairly high degree of precision. The various sources DOE has consulted, including the ERI report, offer similar forecasts, and DOE concludes it is appropriate to rely on those forecasts.
Forecasts of production may be somewhat more uncertain, for several reasons. Developing a new mining project does not take as long as building a new reactor, and the process differs also in terms of when money is spent over the course of the development. If a new reactor would be running in 2020, a significant amount of investment will already have been made by this point. So it is likely that, while schedules might slip, the reactor would indeed begin operating. Mines that might be operating in 2020 include projects that are still in a more speculative phase of development. A producer might halt development for various reasons, including market conditions or a discovery that the uranium resource was smaller than expected. These factors could make the eventual supply smaller than forecasted.
Nonetheless, the rough course of future supply can be predicted with a reasonable degree of reliability. Producers know the amount of uranium available at their existing resources. Technology might improve to permit more uranium to be recovered at a given price—a phenomenon that has reshaped the oil industry. But DOE is not aware of any technology in development that would significantly alter mine economics in the next few years. Consequently, DOE believes it can rely on forecasts about the depletion of
Even if existing production centers continued producing uranium at their current rates, prices could be expected to increase because requirements will increase. Consistent with the ordinary operation of supply and demand, higher prices would be necessary to bring additional supplies into the market. In fact, as existing production centers are depleted, the predicted replacements will have slightly higher production costs. Thus, higher prices will be necessary in the future even to maintain production at current levels. For these reasons the price of uranium is likely to increase over the coming decade.
Most sources DOE has reviewed agree that there will be an increase, although the specific estimates of that increase vary. This price increase is expected to take place even with DOE transfers.
The effect of DOE transfers on this process is not certain. UxC projects that DOE transfers will essentially slow the rate of this price increase. For example, [REDACTED].
Section 3112(d) of the USEC Privatization Act requires DOE to “take into account” the sales of uranium under the Russian HEU Agreement and the Suspension Agreement. Consistent with this instruction, DOE believes this assessment should consider any sales under these two agreements that are ongoing at the time of DOE's transfers.
Under the Russian HEU Agreement, upon delivery of LEU derived from Russian HEU, the U.S. Executive Agent, USEC Inc., was to deliver to the Russian Executive Agent, Technabexport (Tenex), an amount of natural uranium hexafluoride equivalent to the natural uranium component of the LEU. The USEC Privatization Act limited the volume of that natural uranium hexafluoride that could be delivered to end users in the United States to no more than 20 million pounds U
The current iteration of the Suspension Agreement, described above in Section I.D.3.b, sets an annual export limit on natural uranium from Russia. 73 FR 7705 (Feb. 11, 2008). That agreement provides for the resumption of sales of natural uranium and SWU beginning in 2011. While the HEU Agreement remained active (
After considering the factors discussed above, DOE concludes that transfers under the assessed case will not have an adverse material impact on the domestic uranium mining industry. As explained above, DOE transfers under the assessed case will continue to exert some downward pressure on the market price for uranium concentrates. DOE forecasts that about $2.70 of price suppression will be reasonably attributable to DOE transfers; this is somewhat smaller than the effect attributable to transfers in the past few years.
Because the vast majority of deliveries of uranium concentrates take place under long-term contracts that allow producers to realize prices based on term prices prevailing at the time the contracts were entered, DOE concludes that the average effect on the realized price of U.S. producers under current contracts is closer to $1.75. For future term contracts, price suppression associated with DOE transfers would decrease the base price for these contracts, potentially decreasing the average realized price over the life of each contract. However, DOE concludes that this type of effect will be minimal because term contracting activity is expected to remain low during the next few years.
DOE transfers are expected to have a small effect on employment in the domestic industry, but the magnitude of this effect is well within the range of employment fluctuations the industry has experienced in the past due to market conditions unrelated to DOE transfers.
Even focusing on the entities most likely to be impacted—
The domestic uranium conversion industry consists of a single facility, the Metropolis Works (MTW) in Metropolis, Illinois. This facility is owned and operated by Honeywell International Inc. MTW has a nameplate capacity of 15,000 MTU as UF
Like market prices for uranium concentrates, conversion market prices are generally described in terms of the spot price and the term price. This section discusses the potential impacts of DOE transfers on these two prices. For reference, as of March 30, 2015, UxC's spot price indicator was $7.50 per kgU as UF
Three of the market analyses discussed above—those by ERI, TradeTech, and UxC—contain estimates of the effect of DOE transfers on the market prices for conversion services: ERI, TradeTech, and UxC. This section begins with a summary of each report and then discusses DOE's review of the reports' methodologies and conclusions. This section concludes with a discussion of how a change in conversion market prices would affect the domestic uranium conversion industry. A principal mechanism through which such a change in market price could impact individual producers is through the effect on the realized price of primary converters.
DOE tasked ERI with estimating the effect of DOE transfers on the market prices for conversion services. To estimate this effect, ERI employed a market clearing price model very similar to what is described above for the uranium market. As with uranium concentrates, ERI constructed individual supply and demand curves for conversion services and estimated the clearing price with and without DOE transfers. 2015 ERI Report, 44.
DOE tasked ERI with estimating the effects of DOE transfers under the same three scenarios described in Section IV.A.1. The levels of the different scenarios are outlined above in Table 4 in terms of natural uranium equivalent.
Using its market clearing approach, ERI estimates that DOE transfers will have the effects listed in Table 11. As with uranium concentrates, the relationship between the amount of transfers under each scenario and the price effect is essentially linear for each year ERI analyzed (2015-2024). Compare Table 3.7 to Table 4.2 of 2015 ERI Report, 25-26, 45. Therefore, the price effect of DOE transfers in the assessed case can be interpolated from ERI's estimates.
As with uranium concentrates, it is important to emphasize that this is not a prediction that prices will drop by the specified amount once DOE begins transfers following a new determination. A level of price suppression consistent with the estimate for Scenario 1 would, on ERI's analysis, already be reflected to some degree in the current market price because DOE is currently transferring uranium at that rate. 2015 ERI Report, 44. The price suppression that ERI estimates would persist under Scenario 3 is largely ERI's estimate of the consequence of past DOE transfers, from which some of the uranium is still expected to be entering the market in future years.
In addition to its estimate of the price effect of DOE transfers on the uranium concentrate market, TradeTech estimates the effect on the price of conversion services. A summary of TradeTech's estimates appears in Table 12. It appears that TradeTech developed this estimate using its econometric Dynamic Pricing Model. TradeTech Report, 14. Using its model, TradeTech estimates that DOE's transfer reduced the spot price by an average of $2.13 per kgU as UF
TradeTech also provides predictions for the effect of DOE transfers at several decreased transfer rates. If DOE transfers decreased to 75% of current levels, TradeTech estimates that the spot price would increase by an average of $0.21 per kgU as UF
UxC's U-PRICE and SWU-PRICE econometric models predict the markets' reaction to changes in supply for the uranium concentrate and enrichment industries. UxC does not directly model the conversion services market. Instead, UxC relies on other evidence to conclude that the price effect of DOE transfers on spot conversion prices have been “at least equal to, if not greater than, the impact on spot uranium prices.” Specifically, UxC notes that much of the world's spot conversion is sold in conjunction with uranium through contracts for UF
DOE has reviewed each of the market analyses described above. Each report uses a somewhat different methodology in estimating the effects of DOE's uranium sales. ERI's approach is likely to greatly overestimate the effect of DOE's transfers on term conversion prices because it rests on the assumption that conversion prices arise from a competitive market price-setting mechanism. While the analysis would be reasonable if the term price for conversion had a competitive price-setting mechanism, DOE believes that it does not. The market includes only five significant suppliers, one of which provides services almost exclusively to Chinese purchasers. This market structure could, on its own, make the market susceptible to parallel pricing in which rational pricing decisions by individual firms could lead the market price to be unresponsive to supply and demand changes.
Consistent with this expectation, the term price for conversion has not reacted to fairly large market shocks, much less changes in the rate of DOE's transfers. In 2010, when term prices were around $11-13 per kgU, ConverDyn announced that it would no longer enter long-term contracts for less than $15 per kgU. 2014 ERI Report, 12; Michael Schwartz & Julian Steyn, “Supply Margins Erode,”
In sum, the conversion term price has not responded in recent years to major market disruptions. It appears that conversion providers are able to command roughly $16 per kgU regardless of the level of demand or of secondary supply. While it remains conceivable that some very small price effect could be attributed to DOE's transfers, DOE concludes that ERI's forecast of $0.90 per kgU is a very substantial overestimate.
By contrast, the spot market in conversion would be more likely to have a competitive price-setting mechanism. In the spot market, conversion providers are in full competition with sources of secondary supply, many of which might not participate on the medium-term market. For example, enrichers that engage in underfeeding depending on spot prices of uranium and enrichment are unlikely to enter into long-term contracts to supply the resulting excess uranium. Meanwhile, demand on the spot market includes some buyers, like brokers, that purchase relatively little on the long-term market and may be more sensitive to price. Indeed, conversion spot prices do fluctuate by amounts comparable to the fluctuations in uranium concentrates spot prices. And conversion spot prices appear to respond to disruptions in supply or demand. For example, spot prices decreased by 50% in the months following the Fukushima disaster, and they also increased by 50% after MTW announced an extended shutdown in 2012. For these reasons, DOE concludes that market-based economic modeling like what ERI and TradeTech performed for uranium spot prices is also an appropriate method to forecast conversion spot prices in the near term.
TradeTech provides an econometric model that is based roughly on uncommitted supply and demand. For that reason, and reasons like those discussed above with respect to the analogous models for uranium prices, DOE relies on TradeTech's forecast for near-term conversion spot prices.
As mentioned above, the assessed case is similar to the 75% scenario that TradeTech analyzed. TradeTech forecasts that in the near term, DOE transfers at that rate would produce a persistent price suppression of about $0.70 per kgU, on average, or about 8.7% of current spot prices. In addition, ERI employs its market clearing model to predict a very similar price effect, approximately $0.90 in 2015 and $0.70 in 2016 and 2017.
As with uranium concentrates, market prices would affect MTW chiefly through their effect on the price it actually realizes for its services. Since the domestic conversion industry consists of only one producer, the effect of DOE transfers depends on the mix of contracts on which MTW's services are sold: The proportion of spot and term contracts, and the extent to which these contracts lock in prices higher (or lower) than current market prices or conversely expose MTW to spot prices.
No commenter provides specific information about the current realized prices achieved in the conversion industry, and no commenter directly estimates the effect of DOE's transfers on realized prices. ConverDyn is not a publicly traded company, and neither it nor Honeywell routinely make public information about contracting strategies and realized prices for MTW.
ConverDyn has stated in the past that the conversion market generally relies on long-term contracts. Declaration of Malcolm Critchley,
Traxys, a brokerage and trading firm active in the uranium markets, has stated that ConverDyn specifically sells conversion services “almost exclusively” on long-term contracts. Declaration of Kevin P. Smith,
To the extent that ConverDyn engages in spot sales, they represent no more than 5% of its total sales, and likely represent significantly less. Considering this in combination with ConverDyn's statements about its contracting practices, namely that ConverDyn's long-term contracts are priced at the prevailing term price (with some escalation for inflation), DOE concludes that ConverDyn has virtually no exposure to the spot price.
This conclusion is somewhat counterintuitive. ConverDyn evidently has a high proportion of fixed costs. If variable costs are low, then the marginal cost of an additional unit of production should be very low, likely below the current spot price. In addition, ConverDyn states that it has excess capacity at its facility. NIPC Comment of ConverDyn, Enclosure, at 7. One would expect a facility with low marginal cost and excess capacity to sell any additional capacity on the spot market. However, the conversion market is characterized by a very small number of primary producers, and ConverDyn has demonstrated that it has significant influence over the price. Furthermore, the vast majority of contracting activity in conversion services continues to take place on the term market. DOE believes that this can be explained by utilities' preference for security of long-term supply. As ConverDyn explains, the term price for conversion is set based on the price necessary to include all costs of operations, capital recovery, and a return on investment. NIPC Comment of ConverDyn, Enclosure, at 5. Although utilities obviously have an interest in keeping variable costs for fuel as low as possible, paying prices that are not sufficient to cover a conversion providers' costs may, over time, jeopardize the continued operation of primary conversion facilities. By paying the premium associated with the term price, utilities can help prevent this outcome by paying a price that allows these facilities to cover their full operation and capital costs. UxC's reports regarding industry concerns support this concept, reflecting [REDACTED]. UxC Conversion Market Outlook—December 2014, 73 (2014).
Based on the above, it is unsurprising that ConverDyn is unwilling to enter into contracts at the spot price. A rational producer of conversion services with high fixed cost may be willing to reduce production rather than sell conversion services at a price that is not sufficient to cover the set of forward costs described below, even if the market price is higher than its marginal cost per unit. UxC's estimates of current production provide evidence that some primary converters have in fact adopted this strategy. Specifically, [REDACTED]. UxC Conversion Market Outlook—December 2014, 46 (2014).
Given that ConverDyn sells conversion services almost exclusively through term contracts, it follows that the effect on ConverDyn's realized price depends on the effect of DOE transfers on the term price. However, as noted above, DOE concludes that its transfers have had, and will likely continue to have, essentially no effect on term prices for conversion. Consequently, DOE transfers under the assessed case will have very little effect, if any, on the pricing of ConverDyn's term contracts.
DOE recognizes that this conclusion is contrary to an assertion that ConverDyn has made. ConverDyn has claimed that price suppression due to DOE transfers has caused it to lose millions of dollars in revenue. ConverDyn's analysis apparently applied the supposed price suppression across all the company's sales. DOE does not find ConverDyn's analysis convincing. ConverDyn stated in its March 10, 2014 letter that price suppression [REDACTED]. Letter from Malcolm Critchley, ConverDyn, to Peter B. Lyons, DOE, 7 (Mar. 10, 2014). ConverDyn, citing to the 2012 ERI report, states that it developed these estimates by applying a 5.8% price impact to contracts awarded since the start of the DOE sales program in 2009, and to expected futures sales between 2014 and 2016.
As stated above, there is only one conversion facility in the United States, the Metropolis Works facility (MTW) operated by Honeywell International. ConverDyn is the exclusive marketing agent for conversion services from this facility. This section focuses on two types of potential effects of DOE transfers on production levels at MTW: Loss of sales volume for conversion services from MTW, and change in average production costs at MTW.
The nominal capacity of the Metropolis Works facility is 15 million kgU as UF
ERI estimated the effect of DOE transfers on production at MTW on a series of assumptions based in part, on
A summary of ERI's estimates of the effect of DOE transfers on ConverDyn's sales volume appears in Table 13. Using the assumptions described above, ERI estimates that under Scenario 1, DOE transfers decrease ConverDyn's market volume by 0.7 million kgU, or 8%. Under Scenario 2, ERI estimates that DOE transfers decrease ConverDyn's market volume by 0.5 million kgU, or 6%. Under Scenario 3, ERI estimates that DOE transfers decrease ConverDyn's market volume by 0.1 million kgU, or 1%. 2015 ERI Report, 69-70. As with ERI's price estimates discussed above, these estimates do not suggest that were DOE to transfer uranium in accordance with Scenario 1, ConverDyn would lose the predicted volume of sales. DOE has been transferring at or above the rate of Scenario 1 for nearly three years. On ERI's analysis, to some degree the estimated effect has already occurred. Transfers in accordance with Scenario 1 would continue the effect, and transfers in accordance with Scenario 2 or 3 would lead to an increase in ConverDyn's sales volume in the long term by the amount ERI predicts.
ConverDyn's comments
In addition to the above, ConverDyn notes in its RFI comment that the Metropolis Works facility ceased production beginning in January 2015 for a period of approximately three months. The facility apparently stops operating on an annual basis for maintenance and upgrades, but ConverDyn states that the pause is ordinarily only one month long. ConverDyn states that the longer shutdown was necessitated by “the continued depressed state of the conversion market.” Although ConverDyn refers to the displacement of conversion sales by DOE's transfers, it acknowledges that DOE's transfers are not the sole cause of the lengthening of Metropolis Works facility's annual shutdown. ConverDyn does not include supporting data or otherwise provide a proportionate breakdown of the impact of DOE material versus other factors in causing this shutdown. RFI Comment of ConverDyn, Enclosure, at 4.
The UxC Report does not provide estimates for production levels or production costs at individual facilities, but its report does note that the cost for primary producers is “known to be in the range of $10-$15/kgU.” UxC Report, 15. In a separate publication, UxC provides more detailed estimates of both current production levels and projected future production for individual facilities. Market share can be determined by comparing production levels to those of other primary producers and secondary sources. UxC Conversion Market Outlook—December 2014, 45-47 (2014). Notably, UxC's estimates of production at MTW [REDACTED].
Traxys provides some information relevant to DOE's assessment of the likely impact its transfers will have on production by the domestic conversion industry. Traxys explains that in selling material obtained from Fluor-B&W Portsmouth, it pursues a goal to sell at least 50% of the material to non-U.S. customers. Traxys states that it has consistently met this goal. RFI Comment of Traxys, at 1. Traxys further explains that in 2014 no more than 40% of DOE-derived material was sold in the U.S. market. RFI Comment of Traxys, at 2.
MTW's actual production has fluctuated dramatically in recent years, ranging from 4.5 to 11 million kgU, for a number of reasons including work stoppages due to labor disputes, shutdowns imposed by MTW's safety regulator, and plant upgrades as well as possibly competition with other sources of conversion. The scale of those fluctuations, and of the associated financial consequences, makes it difficult to identify an amount of reduced production that could reasonably be attributed to DOE's past transfers—an analytical step that would otherwise help inform DOE's forecast of the effect of future transfers on MTW's production. In what follows, DOE will apply basic economic principles to information gleaned from ConverDyn and other sources to make that evaluation.
ConverDyn offers a scenario in which DOE transfers at 2,800 MTU per year would cause ConverDyn to lose sales of 933 MTU per year. Letter from Malcolm Critchley, ConverDyn, to Peter B. Lyons, DOE, 4-5 (Mar. 10, 2014);
ERI's analysis takes account of this difference in market share between the U.S. and the rest of the world. DOE believes that ERI's approach to estimating lost sales volume based on market share is reasonable.
In addition to the above effects, ConverDyn's March 10, 2014, letter also refers to [REDACTED]. Letter from Malcolm Critchley, ConverDyn, to Peter B. Lyons, DOE, 5-6 (Mar. 10, 2014). DOE believes that these [REDACTED]. ConverDyn acknowledges that this may be the case [REDACTED].
Based on the estimates of the effect of DOE transfers on ConverDyn's production volume, ERI also estimated the change in average per unit production costs that a volume decrease would cause. ERI's approach to calculating this effect is straightforward. Average per unit production cost can be calculated by dividing the total production cost by the number of units produced. If MTW's costs were 100% variable, then average production costs would not change, regardless of the volume produced. However, if some portion of MTW's costs are fixed, then a decrease in the number of units produced would lead to increased production costs, and vice versa. If the proportion of fixed costs, current production volume, and current per unit production cost are all known, the change in average production cost can be easily calculated. ERI looked to various public sources and estimates to provide a basis for its assumptions. DOE believes that this a reasonable approach for estimating the effect of DOE transfers on production cost at MTW.
As discussed above, ERI estimates that ConverDyn's current sales volume is 8.25 million kgU. This estimate is based on ConverDyn's statements about prior production levels at MTW and a stated 25% decrease in volume associated with the Fukushima accident. 2015 ERI Report, 65. ERI then estimates that MTW's current average per unit production cost is $15 kgU. This cost is primarily based on ConverDyn's claim that it has lost more than $100 million in the past decade. Finally, ERI analyzed two scenarios
DOE believes that ERI's estimate of production cost at $15 per kgU is reasonable. This appears to be a conservative estimate because it falls at the upper end of UxC's estimate, and because it is about as high as production costs could be for ConverDyn to have a viable business at the price point it set by its own announcement in 2010 and 2011. In addition, ConverDyn has not disputed ERI's estimate of MTW's production costs.
However, as stated above, based on ConverDyn's statements and estimates from UxC, DOE believes MTW's current production volume is higher than 8.25 million kgU. Thus, ERI's estimate of MTW production volume appears to be an underestimate. In addition, DOE believes that ConverDyn's fixed costs are somewhat lower than 80%. ConverDyn has not provided details of its cost structure, but it has provided information that is consistent with ERI's analysis while suggesting that ERI overestimated ConverDyn's fixed costs. ConverDyn offers a scenario in which DOE transfers at 2,800 MTU per year would cause ConverDyn to lose sales of 933 MTU per year. The company says that decrease in volume would result in [REDACTED]. Letter from Malcolm Critchley, ConverDyn, to Peter B. Lyons, DOE, 4-5 (Mar. 10, 2014). ConverDyn's fixed costs would not change if ConverDyn lost sales, so the change in profit would be due to the decrease in revenues, offset by the elimination of the variable costs that would have been incurred to produce the lost volume.
DOE has performed an analysis like ERI's, using the different assumptions discussed above. Specifically, this calculation uses $15 per kgU as MTW's current production cost, [REDACTED] as the proportion of fixed cost, and UxC's base case primary conversion supply estimate of MTW's production volume as MTW's production volume with DOE transfers
DOE does not believe this increase indicates an adverse material impact. In recent years MTW has experienced several significant disruptions in its business that are not attributable to DOE transfers. These disruptions have caused MTW's annual production to vary significantly—from as high as 11 million kgU to as low as 4.5 million kgU, the latter figure representing less than a third of MTW's nameplate capacity. DOE notes that the predicted decrease in volume reasonably attributable to DOE—
Moreover, the conversion industry has maintained term prices at around $16 per kgU notwithstanding those fluctuations. As discussed above, converters seem able to demand, and conversion purchasers seem willing to accept, prices high enough to cover production costs and justify the investment to maintain conversion capacity. As average production costs increase over time—which they will do even absent DOE's transfers—it seems likely the prices of term contracts will keep pace.
ERI notes that Metropolis Works restarted after an extended shutdown in summer 2013 with approximately 270 employees. Prior to the 2012-2013 shutdown, ERI estimates that the facility employed approximately 334 people. As this change coincided with a change in long-term production volume, ERI concludes that it is unlikely that 100% of Metropolis Works' production costs are fixed. 2015 ERI Report, 72-73. Although it does not provide specific estimates, ERI states that “[a] portion of the reduction in work force at Metropolis Works may be associated with the introduction of DOE inventory into the market.” However, ERI also notes that several other factors likely played a part as well. 2015 ERI Report, 73. ConverDyn does not provide a separate estimate of decreased employment levels due to DOE transfers; instead ConverDyn referred to the relevant sections of the 2014 ERI Report, which reaches conclusions similar to those in the 2015 ERI Report. RFI Comment of ConverDyn, Enclosure, at 5.
The Department recognizes that employment at the MTW facility is lower than in prior years. Little of this decrease can reasonably be attributed to DOE transfers. While some portion of MTW's labor force is a fixed cost that does not depend on volume, DOE estimates the maximum amount of decrease attributable to DOE transfers by assuming all employment at ConverDyn and MTW varies directly with production. As discussed above, DOE forecasts that transfers under the assessed case will reduce MTW's production by 700,000 kgU in 2015 and 600,000 kgU in 2016 and 2017, or 7% of expected 2015 production and 5% expected production in 2016 and 2017. Assuming all of ConverDyn's current labor force is fully variable with production, the employment decrease reasonably attributable to DOE transfers in futures years would be approximately 19 person-years in 2015, 14 person-years in 2016, and 13 person-years in 2017. Of course, the assumption that labor is fully variable is likely to be quite conservative, and it is more likely that a substantial portion of the labor force is a fixed cost. If 50% of labor costs are variable, this would result in a reduction of 9 lost person-years in 2015 and 7 lost person-years in 2016 and 2017. As with comparable analyses discussed above, these figures represent a persistently lower employee count; DOE is not forecasting that every year ConverDyn will lose an additional 7 to 19 employees.
A reduction in employment of 7 or even 19 person-years is relatively small, particularly in comparison to MTW's reduction of approximately 64 after the 2012-2013 shutdown. The industry has been able to weather employment losses much larger than any that could reasonably be attributed to DOE transfers.
Although there are several large-scale development projects currently planned or underway outside the United States—namely AREVA's COMURHEX II modernization project and TVEL's plan for a new facility at SCC—DOE is not aware of any such plans in the United States.
Metropolis Works has, however, undertaken substantial capital expenditures at its existing facility in recent years. Honeywell has stated that it has invested “nearly $177 million over the past 10 years in capital improvements, including $50 million in safety projects.” “About Us,” Honeywell,
In terms of current plans, Metropolis Works announced in November 2014 that it would be shutting down for approximately 90 days beginning in early January 2015. Honeywell noted that it would use the extended shutdown to make updates and capital improvements. Jim Pritchett, Honeywell Metropolis Works, Letter to Employees (Nov. 20, 2014), available at
With the expected increase in demand for conversion services worldwide, DOE believes that it is likely that MTW will continue to make capital improvements and refurbishments necessary to maintain current capacity. Honeywell has invested a substantial amount in such capital improvements in recent years. UxC reports that [REDACTED]. UxC Conversion Market Outlook—December 2014, 70 (2014). ConverDyn's comments agree with that proposition; ConverDyn indicates that it is not planning to expand capacity but does intend to maintain its capacity. NIPC Comment of ConverDyn, Enclosure, at 7.
DOE does not believe that the price effect associated with DOE transfers would make a significant difference in plans for new facilities or other capital improvements at existing facilities. As described above, the term price, at which the vast majority of capacity is transacted, appears to respond weakly to changes in supply. DOE transfers are expected to decrease ConverDyn's sales volume, but even without DOE transfers, ConverDyn's total sales would still be below MTW's current maximum nameplate capacity. In addition, transfers under the assessed case will represent only about 3% of total supply in coming years, and about 11% of secondary supply. In light of forecasts of supply and demand by ERI and UxC, DOE concludes that eliminating this amount of conversion would not make a difference to the assessment that new capacity is not warranted.
ERI's most recent Reference Nuclear Power Growth forecast predicts global requirements for conversion services will grow to approximately 67.2 million kgU by 2020, approximately 20% higher than current requirements. Global requirements are expected to continue to rise to a level of 91.4 million kgU by 2035, approximately 63% higher than current requirements. 2015 ERI Report, 13.
Although not focused on conversion, the requirements forecasts noted above in Section IV.A.5 are also relevant to the conversion industry. In general, requirements and/or uranium concentrate demand forecasts should also apply to demand for conversion services.
In its December 2014 Conversion Market Outlook, UxC predicts significant increases in both
UxC also provides a more detailed explanation of its price forecast, which generally predicts an increase in price over the next 10 years. UxC Conversion Market Outlook—December 2014, 82, 85 (2014). [REDACTED].
Finally, as with uranium concentrates, DOE recognizes that the predictability of transfers from its excess uranium inventory over time is important to the long-term viability and health of the uranium conversion industry. Again, DOE notes that the upper scenario considered by ERI would represent continued transfers at rates consistent with the May 2012 and May 2014 determinations. Compare 2015 ERI Report, 25, with 2014 ERI Report, 28.
As described above, demand is expected to increase substantially in the next several years. Along with it, as the existing conversion facilities age, additional capital improvement for refurbishments will be required. Even with these refurbishments, eventually, new conversion capacity will be necessary to match increasing demand. Given that demand in North America is not expected to decrease substantially and that enrichment capacity is expected to increase, it is likely that the domestic uranium conversion industry will retain its capacity, either through continuing refurbishments at MTW or through the development of one or more new conversion facilities.
Although DOE transfers may not have a large effect on the conversion term price, displaced production volume increases average production costs for primary producers. DOE does not believe this effect will be large enough to significantly alter planned decisions about conversion capacity in the United States. At worst, as with the uranium mining industry, the effect of DOE transfers would be to shift major capital improvements later in time. DOE does not believe that this difference is significant enough to appreciably affect the long-term viability and health of the domestic uranium conversion industry.
ConverDyn has submitted, on several occasions, figures for losses it says it has suffered in the recent past. These figures vary. ConverDyn stated in its March 10, 2014 letter that [REDACTED]. Letter from Malcolm Critchley, ConverDyn, to Peter B. Lyons, DOE, 1 (Mar. 10, 2014). In addition, ConverDyn asserts that it is a marginal business, by which it appears to mean that it is only barely viable. There is some tension between these assertions, together with the fact that MTW has continued to invest substantial amounts of money to maintain and upgrade the facility, most recently in the beginning of 2015. In any case, many causes have contributed to ConverDyn's financial results. Those causes include, among others, the consequences of the Fukushima disaster
Section 3112(d) of the USEC Privatization Act requires DOE to “take into account” the sales of uranium under the Russian HEU Agreement and the Suspension Agreement. As discussed above, DOE believes this assessment should consider any transfers under these two agreements that are ongoing at the time of DOE's transfers.
Under the Russian HEU Agreement, upon delivery of LEU derived from Russian HEU, the U.S. Executive Agent, USEC Inc., was to deliver to the Russian Executive Agent, Technabexport (Tenex), an amount of natural uranium hexafluoride equivalent to the natural uranium component of the LEU. DOE notes that the Russian HEU Agreement concluded in December 2013. Thus, there are no ongoing transfers under this agreement.
The current iteration of the Suspension Agreement, described above in Section I.D.3.b, sets an annual export limit on natural uranium from Russia. 73 FR 7705 (Feb. 11, 2008). That agreement provides for the resumption of sales of natural uranium and SWU beginning in 2011. While the HEU Agreement remained active (
After considering the six factors as discussed above, DOE concludes that transfers under the assessed case will not have an adverse material impact on the domestic uranium conversion industry. MTW and ConverDyn, together the sole conversion provider in the United States, sell nearly exclusively on term contracts. As explained above, DOE transfers will not affect the term price at which those contracts are transacted. DOE transfers under the assessed case will contribute to the spot price a continued $0.70-$0.80 suppression, a somewhat smaller effect than transfers in the past few years have had. Because only a very small proportion—if any—of MTW's sales take place at the spot price, that price suppression will not be material for the domestic industry.
In addition, DOE forecasts that over time, MTW's production will be smaller
Honeywell, the owner and operator of MTW, continues to invest in maintaining and refurbishing the MTW facility, and DOE transfers seem unlikely to change those plans. ConverDyn claims that MTW is on the verge of collapse. If that is so, DOE does not believe that MTW's state is reasonably attributable to DOE's recent transfers or that the dire outcomes ConverDyn predicts will reasonably be attributable to transfers under the assessed case.
DOE does not believe that any of the effects described for the domestic uranium conversion industry have the substantial importance that would make them “adverse material impacts” within the meaning of section 3112(d).
The domestic uranium enrichment industry consists of a relatively small number of companies, one of which operates a currently operating enrichment facility and several of which are developing facilities expected to begin production in the near future. The Paducah Gaseous Diffusion Plant, which was operated by USEC Inc.—since restructured as Centrus Energy Corp.—closed in 2013. Centrus may still be selling SWU from its inventory of uranium enriched at that facility, but this material is finite. Thus, there is only one currently operating enrichment facility in the United States, the URENCO USA (UUSA) gas centrifuge facility in New Mexico.
The current capacity of the UUSA facility is 3.7 million SWU. For comparison, the World Nuclear Association reports that worldwide capacity in 2015 is approximately 61 million SWU.
Like market prices for uranium concentrates and conversion, enrichment market prices are generally described in terms of the spot price and the term price. This section discusses the potential impacts of DOE transfers on these two prices. For reference, as of March 30, 2015, UxC's spot price indicator is $79.00 per separative work unit (SWU) and its term price indicator is $90.00 per SWU.
Two of the market analyses discussed above contain estimates of the effect of DOE transfers on the market prices for conversion services: ERI and UxC. This section begins with a summary of each report and then discusses DOE's review of the reports' methodologies and conclusions. This section concludes with a discussion of how a change in conversion market prices would affect the domestic uranium enrichment industry. A principal mechanism through which such a change in market price could impact individual producers is through the effect on the realized price of primary enrichers.
In its analysis, ERI estimates the effect of DOE transfers on the market prices for enrichment services. To estimate this effect, ERI employed a market clearing price model similar to what is described above for the uranium and conversion markets. As with uranium concentrates and conversion, ERI constructed individual supply and demand curves for enrichment services and estimated the clearing price with and without DOE transfers. 2015 ERI Report, 44. The discussion in Section IV.A.1 regarding DOE's analysis of ERI's market clearing approach analysis also applies to ERI's estimates of the effect of DOE transfers on market prices for enrichment services. A summary of ERI's estimates of the effect of DOE transfers on the market price for SWU appears in Table 15.
As with uranium concentrates, DOE tasked ERI with estimating the effects of DOE transfers under the same three scenarios described in Section IV.A.1. The amounts of uranium entering the market at various times in different scenarios are outlined above in Table 4 in terms of MTU natural uranium equivalent.
Table 15 summarizes ERI's results. As with uranium concentrates, the relationship between the amount of transfers under each scenario and the price effect is essentially linear for each year ERI analyzed (2015-2024). Compare Table 3.8 to Table 4.3 of 2015 ERI Report, 25-26, 45. Thus, it possible to interpolate the price effect that ERI's analysis would predict for other levels of transfers. The estimated price effect for the assessed case is approximately $0.20 higher than ERI's estimates for Scenario 2. These interpolated values are included in Table 15.
As with uranium concentrates and conversion, it is important to emphasize that this is not a prediction that prices will drop by the specified amount once DOE begins transfers following a new determination. A level of price suppression consistent with the estimate for Scenario 1 would, on ERI's analysis, already be reflected to some extent in the current market price because DOE has been transferring uranium at that rate for some time. 2015 ERI Report, 44. The price suppression that ERI estimates would persist under Scenario 3 is largely ERI's estimate of the consequence of past DOE transfers, from which some of the uranium is still expected to be entering the market in future years.
UxC estimates past effects of DOE uranium transfers on the price of enrichment services using its proprietary U-PRICE and SWU-PRICE models and then uses those models to forecast the effects of continued transfers at the rates described in the May 2014 Determination. UxC Report, 5. As with its uranium concentrate estimates discussed above, UxC provides “incremental” and “total impact” figures. In UxC's models, continued transfers at a given rate have a cumulative effect, so that the change to prices increases over time. UxC's “incremental approach” estimates the effect of DOE transfers beginning in 2012. The “total impact approach” estimates the effect of DOE transfers beginning in 2008, so as, in UxC's view, to take full account of the cumulative effect of all transfers.
Using its incremental approach, UxC estimates that between 2012 and 2014 DOE's transfers reduced the spot price by an average of $7.49 per SWU and the term price by an average of $5.37 per SWU. Using its total impact approach, UxC estimates that DOE's transfers between 2008 and 2014 reduced the spot price in the period from 2012 to 2014 by an average of $9.19 per SWU and the term price by an average of $6.96 per SWU. UxC Report, 8-9.
UxC also forecasts the effect of DOE's continuing transfers at current rates for the period 2015 to 2030. A summary of UxC's estimates of the effect of DOE transfers on future enrichment prices appears in Table 16. UxC estimates that DOE transfers in the near and medium terms would reduce the spot price by an average of $5.31 per SWU. UxC projects that this effect will change slightly in the medium term as market prices start to recover. Specifically, DOE transfers would reduce the spot price between 2018 and 2030 by an average of $4.86 per SWU. UxC also notes that the former number is larger relative to the expected price of enrichment than the latter number (5.9% versus 3.8%)—both, DOE surmises, because the longer-term price effect is smaller, and because the longer-term price is higher. UxC Report, 12. UxC forecasts that DOE transfers in the near and medium terms would reduce the term price by an average of $5.50 per SWU. Between 2018 and 2030, UxC forecasts that DOE transfers would reduce the term price by an average of $5.00 per SWU. Again, the near and medium term impact is larger in relation to the expected price (5.6% versus 3.6%). UxC Report, 11.
After reviewing the market analyses described above, and other information including other comments received, DOE concludes that ERI's method for estimating and forecasting the price effects reasonably attributable to DOE's transfers is reasonable. As explained above, the market-clearing price analysis is consistent with basic economic principles and should be a reasonable way to estimate relatively small changes in price, assuming the market has a competitive price-setting mechanism. It is not clear whether the enrichment market functions in that way. The market is even more concentrated than the conversion market: Only four companies worldwide provide enrichment services, and one provides services essentially exclusively to Chinese purchasers. Unlike uranium and conversion, the enrichment market does not include significant sources of secondary supply.
To be conservative, DOE will assume that a competitive price-setting mechanism does determine enrichment prices. On that assumption, ERI's market-clearing analysis should provide an appropriate forecast for the effects of DOE's transfers. To the extent that enrichment prices are uncompetitive, the price effect will tend to be smaller than what ERI forecasts.
Also, DOE notes that ERI's analysis assumes demand for enrichment to be perfectly inelastic. This assumption is a reasonable approximation, because, as discussed above, nuclear utilities have predictable requirements that must be filled. In reality, demand may have some small degree of elasticity. That elasticity would also tend to make the price effect smaller than what ERI forecasts.
However, as noted above, ERI's model does not take account of the interplay between uranium concentrates and enrichment prices. As explained above, for the uranium concentrates market, DOE expects that this interplay is not large enough to make a significant difference to this analysis. With respect to the enrichment market, DOE notes that only about one quarter of DOE's future transfers under the assessed case will displace enrichment services. Consequently, the effect of DOE's transfers on uranium hexafluoride prices should generally be larger than the effect on enrichment prices. Both ERI and UxC forecast such a relative difference—about 7% for concentrates for a rate of 2,705 MTU per year, compared to about 4% for enrichment. The amount of enrichment currently devoted to underfeeding depends in part on the relative prices of natural uranium hexafluoride and enrichment. If uranium prices decrease by a relative 3%, enrichers can be expected to devote less primary supply to underfeeding—on the order of 3% less, or about 200,000 SWU given that enrichers currently use about 8 million SWU for underfeeding. This is close to 40% of the total amount of SWU from DOE transfers under the assessed case.
UxC's model takes these interactions into account. DOE further notes that UxC's forecast of the effect on SWU prices is quite similar to ERI's, although it predicts a slightly larger effect on the price. UxC analyzed transfers that are equivalent to ERI's Scenario 1. Whereas ERI forecasts a price effect in the near term (2015-2017) of $4.40 for Scenario 1, UxC forecasts a near-term price effect of $5.31 (spot) or $5.50 (term). ERI forecasts a longer-term effect averaging $4.50 over the next decade. By comparison, UxC forecasts an effect of $4.86 (spot) or $5.00 (term).
While UxC did not provide forecasts for other possible transfer rates, it is reasonable to assume the price change would be proportional to the market displacement for supply changes that, like DOE's, constitute small proportions of total supply and have small effects on price. Accordingly, DOE concludes that UxC's model would forecast, for transfers under the assessed case, price effects of $4.55 (spot) or $4.70 (term) in the near-term and $4.15 (spot) or $4.30 (term) in the longer term.
However, DOE does believe that the consistency between UxC's forecast and ERI's indicates that the effect of interactions between the uranium and enrichment markets is unlikely to be larger than what DOE estimates here. Because the forecast price effects are only estimates, not precise to the penny, and because the underlying assumptions of ERI's model are reasonable, DOE concludes it is appropriate to rely on ERI's model with a revision to account for underfeeding. Accordingly, DOE adjusts the resulting estimate upward by 40% to reflect the additional enrichment supply that may become available due to the relative changes in uranium and enrichment prices.
The significance of price suppression at this level depends, at least in part, on market price. The 2015 ERI Report relies on the price indicators for SWU published by TradeTech on January 31, 2015. The spot price for SWU has decreased by about $9.00 since that date. The current price indicators, as published by UxC, are $79.00 per SWU in the spot market and $90.00 per SWU in the term market.
In its annual Enrichment Market Outlook, UxC provides a detailed explanation of its price forecast, which generally predicts an increase in term prices over the next 10 years. UxC Enrichment Market Outlook—Q4 2014, 91-94 (2014). [REDACTED].
Using these price forecasts, it is possible to project the estimated price effect in future years as a percentage of the expected market price. DOE predicts that the price effect reasonably attributable to DOE transfers under the assessed case will be around $5.25 in the near term, and then average approximately $5.40 between 2018 and 2024. As prices increase, this price effect will represent a smaller proportion of the then-prevailing market prices. Based on UxC forecasts, which DOE believes to be a reasonable expectation for future prices, the price effect will average approximately [REDACTED] of the term price in 2015-2017, and [REDACTED] between 2018 and 2024.
As with uranium concentrates and conversion, the principal mechanism through which a change in market price would impact the domestic uranium enrichment industry is through the effect on what prices an enricher actually receives for its services. The market prices published by TradeTech and UxC are based on information about recent offers, bids, and transactions, and are thus a snapshot of contracting activity at the time of the publication. Enrichment, like uranium concentrates and conversion, is primarily sold on long-term contracts. Consequently an enricher's actual revenues are somewhat insulated from short-run fluctuations in price.
There is only one currently operating enrichment facility in the United States, the UUSA gas centrifuge facility in New Mexico. No commenter provides information about the realized price achieved by URENCO or the effect of DOE transfers on that price. However, other sources provide some relevant information.
In recent years, the vast majority of SWU has been sold on the term market. UxC Enrichment Market Outlook—Q4 2014, 17, 20 (2014). UxC reports that approximately [REDACTED] SWU were sold through spot contracts in 2014.
Current term contracting volume is much smaller than pre-2010 volumes.
Consistent with DOE's analysis, EIA reports that in 2013, the average price paid for SWU was $142.22. EIA, Uranium Marketing Report, 7 (2014). This is well above the average market prices for 2013, approximately $110 in the spot market and $120 in the term market according to UxC.
URENCO's most recent financial statements indicate that at least a portion of its contract portfolio “extend[s] beyond 2025.” URENCO Limited, Interim Financial Statements for the 6 Months Ended 30 June 2014, at 6, available at
Therefore, DOE concludes that URENCO USA has essentially zero exposure to current term prices. Transfers under the assessed case will eventually affect URENCO's realized price, because URENCO's contracts will expire and URENCO will enter new contracts at the prevailing future term prices. Therefore, DOE concludes that the effect of DOE transfers on URENCO's prices will be through the effect on longer-term, rather than near-term, prices. As noted above, the longer-term price effect forecast for transfers under the assessed case is $5.40 per SWU.
As noted above, URENCO has stated that a small amount of its capacity is devoted to underfeeding. RFI Comment of URENCO, at 3.
URENCO reports that the nameplate capacity for the UUSA facility is 3.7 million SWU. RFI Comment of URENCO, at 1. URENCO has also stated
Due to the nature of gas centrifuges, it is highly unlikely that UUSA will decrease production of SWU. As URENCO states, due to the low level of electricity required to run the centrifuges, slowing production would have almost no effect on operating expenses. Furthermore, stopping and restarting a centrifuge may damage the equipment. RFI Comment of URENCO, at 3. That said, there is a possibility that URENCO will divert capacity currently used to produce LEU to underfeeding or tails re-enrichment. Specifically, UxC notes [REDACTED]. UxC Enrichment Market Outlook—Q4 2014, 42 (2014). Given how little spot contracting activity there has been in recent years, DOE believes that this effect will be small.
ERI does not provide an estimate of the change in employment due to DOE transfers in the enrichment industry. No commenter references changes in employment in the enrichment industry. URENCO states that its business is essentially fixed-cost and makes no reference to changes in employment.
Although DOE notes that there have been changes in employment in the enrichment industry in recent years, mostly related to the closure of the Paducah Gaseous Diffusion Plant, DOE does not believe that its transfers will have any significant effect on employment levels in the enrichment industry.
URENCO recently completed “Phase II” of its expansion plans, bringing the capacity of its facility to 3.7 million SWU. “Phase II Completion,” URENCO (Apr. 9, 2014),
DOE is aware of several other planned or proposed enrichment facilities in the U.S., namely, AREVA's Eagle Rock Enrichment Facility in Idaho, Centrus Energy's—formerly USEC Inc.—American Centrifuge Plant in Piketon, OH, and Global Laser Enrichment's facility in Wilmington, NC.
The Eagle Rock Enrichment Facility would use gas centrifuge technology and would have a capacity of approximately 3.3 million SWU. “Eagle Rock Enrichment Facility,” AREVA,
The proposed American Centrifuge Plant would use gas centrifuge technology and would have a capacity of approximately 3.8 million SWU. “USEC Inc. Gas Centrifuge,” U.S. NRC,
Global Laser Enrichment, a venture of GE-Hitachi and Cameco, has proposed an enrichment plant that would use laser enrichment technology developed by Silex Systems, an Australian company. The proposed facility in Wilmington, NC, would have a capacity of about 6 million SWU. GLE License Application, Rev. 7, U.S. NRC, Docket 70-7016, at 1-16 (August 20, 2012), available at
Based on ERI's estimate, as adjusted to account for underfeeding, eliminating all DOE-transferred material from the market—including material already transferred in the past as well as the material to be transferred under the assessed case—could cause prices to rise by no more than $7.40 in 2015 and less than $4.50 in 2016 and 2017, which could result in a term price of around $97.00 in 2015 and just under $95.00 in 2016 and 2017.
The timing of the above announcements suggests that enrichers would require a substantially higher price signal in order to move forward with adding new capacity. Specifically, the American Centrifuge project was put on hold when term prices were close to $115 and the Eagle Rock facility was put on hold when prices were close to $130. Although GLE's announcement came at a time when prices were $95, the level of near-term uncovered requirements is low—[REDACTED], UxC Enrichment Market Outlook—Q4 2014, 39 (2014)—and it is not clear that GLE would be able secure the necessary long-term contracts even at that price. Because the developers stopped the projects just discussed on the basis of prices at or above $95, DOE concludes that DOE transfers in the near term will not change the decisions whether to complete those projects. In the longer term, as prices improve, there may come a point for each of these projects at which its owner is willing to invest to complete the project. The price effect forecast for transfers under the assessed
As a result, DOE believes that transfers under the assessed case will not have a significant effect on capacity expansion at UUSA or at other planned facilities.
ERI's most recent Reference Nuclear Power Growth forecast projects global requirements for enrichment services to grow to approximately 59 million SWU between 2021 and 2025, approximately 31% higher than current requirements. Global requirements are expected to continue to rise to a level of 74 million SWU between 2031 and 2035, approximately 64% higher than current requirements. 2015 ERI Report, 13. ERI presents a graph comparing global requirements, demand, and supply from 2013-2035. Global supply is expected to continue to significantly exceed global demand over the long term. 2015 ERI Report, 16.
Although not focused on enrichment, the requirements forecasts noted above in Section IV.A.5 are also somewhat relevant to the enrichment industry. In general, requirements and/or uranium concentrate demand forecasts should also apply to demand for low enriched uranium. As with conversion, there may be some small differences due to strategic and discretionary inventory building. For example, China has been purchasing strategic supply well in excess of its requirements. Those purchases have come in the form of U
In addition to demand for LEU, higher demand for uranium concentrates can affect demand for enrichment because of the relationship described above between natural uranium and enrichment as inputs for producing enriched uranium product. In the medium to long term, supply from current mines will cease to exceed demand. Meanwhile, enrichment supply will continue to exceed requirements for LEU. As prices for uranium concentrates and conversion increase relative to SWU prices, it may become more economical to re-enrich high-assay tails. In this vein, ERI suggests that enrichers will continue to redirect capacity to underfeeding and that Rosatom will continue to re-enrich tails. 2015 ERI Report, 16.
In its Uranium Enrichment Outlook for the 4th quarter of 2014, UxC predicts significant increases in both requirements and demand in the long-term. UxC Enrichment Market Outlook—Q4 2014, 36, 38 (2014). Specifically, [REDACTED].
As discussed above in Section IV.C.1, UxC also predicts a significant increase in enrichment prices over the next ten years.
Finally, as with uranium concentrates and conversion services, DOE recognizes that the predictability of transfers from its excess uranium inventory over time is important to the long-term viability and health of the uranium enrichment industries. Again, DOE notes that the upper scenario considered by ERI would represent continued transfers at rates consistent with the May 2012 and May 2014 determinations. Compare 2015 ERI Report, 25, with 2014 ERI Report, 28.
DOE notes that enrichment market prices are at levels not seen in the past decade. There is also tremendous uncertainty in the market regarding future production. Centrus Energy Corp. (formerly USEC, Inc.) emerged from bankruptcy in the past year and has been forced to rethink its business model since the closure of the Paducah Gaseous Diffusion Plant. A significant source of business for Centrus and URENCO in recent years has been from the Asian markets, specifically Japan, Taiwan, and South Korea. Demand in these markets has been directly affected by the Fukushima Daiichi accident. In addition, the enrichment market faces uncertainty related to Areva's finances and the potential for GLE to build and operate a new facility utilizing the Silex technology. DOE is cognizant of these uncertainties facing the market.
However, as described above, enrichment capacity is expected to shift over time toward a trajectory that more closely tracks demand. The moves in recent years by several enrichers to curtail or postpone planned capacity increases contributes to this. As a result, prices are expected to recover over the next ten years. DOE does not believe that the price effect attributable to DOE transfers is large enough to cause a significant change to production and development plans at existing or planned facilities. At worst, as with the uranium mining industry, the effect of DOE transfers would be to shift major capital investments later in time. DOE does not believe that this difference is significant enough to appreciably affect the long-term viability and health of the domestic uranium enrichment industry.
Section 3112(d) of the USEC Privatization Act requires DOE to “take into account” the sales of uranium
Under the Russian HEU Agreement, Russian HEU was down-blended to LEU and then delivered to USEC Inc. for sale to end users in the United States. DOE notes that the Russian HEU Agreement concluded in December 2013. Thus, there are no ongoing transfers under this agreement.
The current iteration of the Suspension Agreement, described above in Section I.D.3.b, sets an annual export limit on natural uranium from Russia. 73 FR 7705 (Feb. 11, 2008). That agreement provides for the resumption of sales of natural uranium and SWU beginning in 2011. While the HEU Agreement remained active (
After considering the six factors as discussed above, DOE concludes that transfers under the assessed case will not have an adverse material impact on the domestic uranium enrichment industry. As explained above, DOE transfers under the assessed case will continue to exert some downward pressure on the market price for enrichment services. DOE believes that $5.25 per SWU in the near-term and $5.40 per SWU over the longer term is a reasonable estimate of the price effect attributable to DOE transfers; this is somewhat smaller than the effect transfers in the past few years have had. Sales from UUSA, the sole operating enrichment facility in the United States, are almost exclusively under term contracts with no exposure to the spot price. Thus, the effect of DOE transfers on realized price for enrichment from UUSA will come through the effect on new term contracts that URENCO will enter into in the longer term,
DOE believes that decisions to expand capacity at UUSA or at other planned enrichment facilities require prices significantly higher than current prices. This would be true with or without DOE transfers. Thus, DOE concludes that transfers under the assessed case will not have a significant effect on near-term decisions to build future enrichment capacity in the United States. DOE expects that SWU prices will increase in the medium- to long-term enough to support these expansion plans. DOE transfers would, at worst, have the effect of slightly delaying the development of such future capacity without preventing these new facilities from coming online. As such, DOE concludes that transfers under the assessed case would not significantly affect the long-term viability or financial health of the domestic uranium enrichment industry. DOE does not believe that any of these effects has the substantial importance that would make it an “adverse material impact” within the meaning of section 3112(d).
DOE received a number of comments in response to the NIPC and RFI that warrant additional discussion. Many comments included suggestions for how DOE might mitigate any potential adverse impacts.
Several commenters asserted that for a given amount of transferred uranium, introducing the material into the spot market is particularly harmful to industry. These commenters contend that DOE should analyze its transfers on the assumption that the material is primarily appearing on the spot market. They also urge DOE to take steps to ensure that the uranium it transfers is sold through term contracts, rather than through spot contracts or through future-delivery contracts that commenters say are little different from future spot contracts. Some of these commenters, representing members of the domestic mining industry, suggest that DOE could achieve this goal by distributing its material through uranium concentrate producers. These producers, the commenters say, have incentives to place DOE-sourced uranium into long-term deliveries, in order to mitigate the effect on spot prices. To the extent such an arrangement led to higher spot prices, DOE would also receive greater value for the uranium.
With respect to the impacts caused by DOE transfers, the foregoing analysis has, in almost all respects, assumed the material contributes to the spot markets over time.
DOE recognizes that if some or all of its transfers entered the markets through term contracts, the effects on spot prices could be smaller.
At least one commenter says that some utility buyers have the financial capacity to buy uranium and hold it for a few years before using it. According to the commenter, the price curve for uranium, coupled with the financial environment in which interest rates have remained very low, makes such transactions advantageous for utilities. DOE notes, however, that holding the
Commenters from the mining industry did indicate that they would be interested in managing the distribution of DOE-sourced uranium. However, DOE notes that the commenters appear to contemplate that DOE would receive in such an arrangement substantially less than the prevailing spot market price for the uranium. If, on the other hand, the commenters expect to pay prevailing spot market prices, DOE believes they could in principle already undertake to manage how the material enters the markets. DOE transfers uranium to commercial businesses; and one of them, DOE believes, sells its uranium to Traxys, a uranium trading firm. A person that wanted to buy uranium from DOE to transfer it from the spot market to the term market could buy the equivalent amount of material from Traxys instead.
For these reasons, while DOE is willing to explore whether it would be feasible for some persons, such as uranium concentrate producers, to manage the appearance of DOE-sourced uranium on the markets, DOE does not consider it appropriate to incorporate this suggestion in today's determination.
Commenters also suggested a variety of other actions that could help to mitigate the impact of DOE transfers. Several suggested that DOE consider a matched sales arrangement similar to the arrangement used during an earlier iteration of the Suspension Agreement with Russia. Under that program, Russian-origin natural uranium (U
One commenter suggested several alternatives to DOE's exchanging LEU for down-blending services. First, the commenter suggested that DOE down-blend only to an assay of 19.75 wt-% U-235, an assay that commercial enrichers do not provide and therefore will not compete with commercial supply. However, because there is very little demand for LEU at this assay—which is predominantly used in research reactors—the resulting LEU would have little value to a contractor receiving it in exchange for services. Granted, the contractor could down-blend the LEU further to assays of 5 wt-% or below; but that outcome would affect markets the same as if DOE itself transferred the low-assay LEU. Further, DOE allocates the portion of the down-blended LEU that is not transferred to the down-blending contractor to various programmatic needs, many of which require LEU with an assay of 5 wt-% or below. The commenter also suggests that DOE devote the LEU resulting from down-blending to either the U.S. nuclear fuel bank, the American Assured Fuel Supply, or to the IAEA's nuclear fuel bank. Both proposals amount to a request that DOE cease exchanging LEU for down-blending services altogether. The second proposal suggests that the difference in funding could be made up by decreasing U.S. financial contributions to the IAEA by an amount equivalent to the value of the LEU. The Agency currently plans to purchase LEU from the market to stock its fuel bank. If the United States provided LEU, the IAEA would need to purchase less LEU from the market. Thus, it appears that this type of transaction would not decrease the impacts on the domestic enrichment industry because it would displace purchases of LEU on the open market that the IAEA would have otherwise made. In any case, DOE believes that it can meet its purpose of exchanging 4.95 wt-% LEU for down-blending services without causing an adverse material impact on the domestic uranium industries; thus, DOE declines to incorporate these alternatives into today's determination.
One commenter suggested that DOE should consider as a mitigating strategy implementing regulations that limit the amount of secondary supply obtained from underfeeding that enrichers can sell in the United States. Doing so would mean protecting producers from competition with underfeeding by enrichers, at enrichers' expense. DOE is not inclined to engage in such capacity controls.
With respect to the domestic conversion industry, one commenter suggested stopping transfers of conversion services would have a positive effect. DOE does not transfer conversion services; it transfers natural uranium hexafluoride. This displaces primary conversion because in order to obtain natural uranium hexafluoride from primary production, one would need to buy uranium concentrates and then pay for that material to be converted into uranium hexafluoride. The commenter is presumably suggesting that DOE should accept in exchange for its uranium an amount of services equivalent to the value of the uranium concentrates and “credits” for the amount of conversion services necessary to produce the material from primary production. These “credits” would be in the form of a tradeable contract for conversion services from a primary supplier. This process would mean that DOE would receive less services in exchange for its uranium while making the individual transfers substantially more complicated. DOE further notes that this would decrease the impacts on the domestic conversion industry, but it would have no effect on the impacts to the domestic uranium mining or enrichment industries. For these reasons, DOE declines to engage in this type of transaction.
One commenter also suggested that DOE could establish price bands below which DOE would not transfer uranium. The commenter presented this proposal specifically for conversion services. Thus, this would require DOE to accept conversion “credits” as described in the preceding paragraph if the conversion price fell below a given threshold. However, DOE recognizes that this approach could in principle apply to any uranium transfers. As DOE has concluded that its transfers will not have an adverse material impact on the domestic uranium industries in market conditions that are expected to occur,
In addition to comments regarding potential ways to mitigate any impacts caused by DOE transfers, DOE received a number of comments that are related to DOE's current plans, but do not directly implicate how DOE conducts its analysis of whether DOE transfers will cause adverse material impacts.
One commenter suggested that DOE should prepare two separate Secretarial Determinations—one for Portsmouth cleanup, and one for down-blending services. DOE agrees that it could conceivably prepare separate determinations for these two programs. However, DOE believes it is more informative to analyze these transfers together, to assess their cumulative impacts on the domestic uranium industries. Thus, DOE declines to adopt separate determinations for these programs at this time. This commenter also suggests that DOE could potentially conduct transfers for down-blending under section 3112(e)(2) of the USEC Privatization Act, which allows certain transfers for national security purposes. DOE recognizes that certain programs may potentially fall under more than one subsection of the Act. DOE believes it is unnecessary to determine whether these transfers could be conducted under section 3112(e)(2) because DOE has concluded that these transfers will not have an adverse material impact on the domestic uranium industries.
Several commenters suggested that DOE is not getting fair market value for its uranium—as section 3112(d)(2)(C) of the USEC Privatization Act requires—because DOE values the material at the spot price rather than the term price. This assessment does not analyze whether DOE will receive fair market value for its transfers. DOE evaluates whether it receives fair market value prior to each transfer through a separate process. With respect to this analysis, DOE has assumed that in its uranium transfers it will receive roughly the prevailing spot price for its material. That assumption is reasonable because it is consistent with DOE's past experience and with the contracts under which DOE transfers uranium.
DOE received a number of comments requesting that it publish a draft Secretarial Determination for notice and comment. DOE notes that notice and comment is not required for determinations pursuant to section 3112(d)(2). However, DOE has solicited public comment on two occasions in preparation for this determination, through a December 2014 Request for Information and a March 2015 Notice of Issues for Public Comment. DOE received substantial input, described above, in response to those two notices, and it has carefully considered these comments.
For the reasons discussed above, DOE concludes that transfers under the assessed case will not have an adverse material impact on the domestic uranium mining, conversion, or enrichment industries, taking into account the Russian HEU Agreement and Suspension Agreement.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Summary presentation of final rules.
This document summarizes the Federal Acquisition Regulation (FAR) rules agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) in this Federal Acquisition Circular (FAC) 2005-82. A companion document, the
For effective dates see the separate documents, which follow.
The analyst whose name appears in the table below in relation to the FAR case. Please cite FAC 2005-82 and the specific FAR case number. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755.
Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these rules, refer to the specific item numbers and subjects set forth in the documents following these item summaries. FAC 2005-82 amends the FAR as specified below:
DoD, GSA, and NASA are issuing a final rule adopting the interim rule published July 25, 2014, without change. The interim rule amended the FAR to implement final rules issued on September 24, 2013, by the Office of Federal Contract Compliance Programs at the Department of Labor (DOL) relating to equal opportunity and affirmative action for veterans and individuals with disabilities. The DOL rules provide clarification of mandatory listing of employment openings, the posting of notices, making notices accessible to persons with disabilities, and requiring nondiscrimination statements in contractor solicitations or advertisements for employees. The FAR clauses were restructured in the interim rule to provide a citation to the applicable clause in the DOL regulations and include a statement that summarizes contractors' top level obligations under each clause. There is no significant impact on small entities imposed by the FAR rule.
This final rule amends the FAR to implement section 802 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239), which provided for additional requirements relative to the review and justification of pass-through contracts. In those instances where an offeror for a contract, task order, or delivery order informs the agency pursuant to FAR 52.215-22 of their intention to award subcontracts for more than 70 percent of the total cost of work to be performed under the contract, task order, or delivery order, section 802 requires the contracting officer to (1) consider the availability of alternative contract vehicles and the feasibility of contracting directly with a subcontractor or subcontractors that will perform the bulk of the work; (2) make a written determination that the contracting approach selected is in the best interest of the Government; and (3) document the basis for such determination. These statutory requirements are being implemented in FAR 15.404-1(h) and for consistency purposes are applicable to all of the agencies subject to the FAR even though section 802 only applied to the Department of Defense, the Department of State, and the United States Agency for International Development.
Because the rule augments the current responsibilities of contracting officers relative to the review and justification of pass-through contracts and does not initiate or impose any new administrative or performance requirements on contractors, and specifically exempts contract actions awarded pursuant to FAR subparts 19.5, 19.8, 19.13, 19.14, or 19.15, there is no impact on small businesses.
This final rule changes the language at FAR 42.1502 to accommodate the recent merger of the Architect-Engineer Contract Administration Support System (ACASS) and the Construction Contractor Appraisal Support System (CCASS) as modules within the Contractor Performance Assessment Reporting System (CPARS) database. This action will standardize the past performance reporting requirements under the CPARS database. The ACASS and CCASS modules were merged into CPARS on July 1, 2014.
This change does not place any new requirements on small entities.
Editorial changes are made at FAR 4.905(a), 22.102-2(a), 39.101(a)(1)(ii), 52.212-4(v), 52.212-5(b)(36)(i), (b)(36)(ii), (b)(39)(ii), and (e)(1)(v), 52.213-4(a) and (b), and 52.223-16.
Federal Acquisition Circular (FAC) 2005-82 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration.
Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2005-82 is effective May 7, 2015 except for items II and III, which are effective June 8, 2015.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA have adopted as final, without change, an interim rule amending the Federal Acquisition Regulation (FAR) to implement final rules issued by the Office of Federal Contract Compliance Programs at the Department of Labor (DOL) relating to equal opportunity and affirmative action for veterans and individuals with disabilities.
Mr. Edward Loeb, Procurement Analyst, at 202-501-0650 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite FAC 2005-82, FAR Case 2014-013.
DoD, GSA, and NASA published an interim rule in the
• “Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Special Disabled Veterans, Veterans of the Vietnam Era, Disabled Veterans, Recently Separated Veterans, Active Duty Wartime or Campaign Badge Veterans, and Armed Forces Service Medal Veterans,” which amended DOL regulations at 41 CFR parts 60-250 and 60-300 (78 FR 58614).
• “Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Individuals with Disabilities,” which amended DOL regulations at 41 CFR part 60-741 (78 FR 58682).
No public comments were submitted, and no changes have been made to the interim rule.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
Both rules issued by the DOL were determined to be economically significant under E.O. 12866, and major rules under 5 U.S.C. 804. The Regulatory Impact Analysis for these rules was published in the
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 604,
This final rule is being issued to implement changes to 41 CFR 60-25, 60-300, and 60-741, as published in the
There were no public comments submitted in response to the initial regulatory flexibility analysis.
With regard to equal opportunity for veterans, DOL estimated that the approximate number of small entities that would be subject to its rule would be 20,490 Federal contractors with between 50 and 500 employees (approximately 44% of Federal contractors may be impacted).
With regard to equal opportunity for individuals with disabilities, DOL estimated that its rule impacts 20,490 Federal contractors with between 50 and 500 employees (approximately 44% of Federal contractors may be impacted).
This FAR rule does not add any new reporting, recordkeeping, or other compliance burdens. The FAR rule makes contracting officers and contractors aware of the DOL requirements.
DoD, GSA, and NASA are not aware of any significant alternatives which would accomplish the stated objectives of implementing the DOL final rules, while minimizing impact on small entities. DoD, GSA, and NASA do not have the flexibility of changing the DOL rules, which have been published for public comment and are in effect as final rules. There is no significant impact on small entities imposed by the FAR rule.
Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat. The Regulatory Secretariat has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.
The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply; however, these changes to the FAR do not impose additional information collection requirements to the paperwork burden previously approved for the DOL regulations under OMB Control Numbers 1250-0004, OFCCP Recordkeeping and Reporting Requirements—38 U.S.C. 4212, Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended; 1250-0005, OFCCP Recordkeeping and Reporting Requirements—Section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 703; and 1293-0005, Federal Contractor Veterans' Employment Report, VETS-100/VETS-100A.
Government procurement.
Accordingly, the interim rule amending 48 CFR parts 1, 22, and 52, which was published in the
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement section 802 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013. This section provides additional requirements relative to the review and justification of pass-through contracts.
Ms. Kathy J. Hopkins, Procurement Analyst, at 202-969-7226 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2005-82, FAR Case 2013-012.
DoD, GSA, and NASA published a proposed rule in the
Two respondents submitted comments on the proposed rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:
This final rule makes two changes from the proposed rule. The first change revises FAR 15.404-1(h)(2) to make clear that competition requirements still apply if the contracting officer selects alternative approaches. The second change revises FAR 15.404-1(h)(3) to clarify that the requirements of this rule do not apply to small business set-aside contracts.
The Regulatory Secretariat Division received responses from two respondents to the proposed rule which are discussed below:
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR part 15 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
(h)
(2) Except as provided in paragraph (h)(3) of this section, when an offeror for a contract or a task or delivery order informs the contracting officer pursuant to 52.215-22 that it intends to award subcontracts for more than 70 percent of the total cost of work to be performed under the contract, task or delivery order, the contracting officer shall—
(i) Consider the availability of alternative contract vehicles and the feasibility of contracting directly with a subcontractor or subcontractors that will perform the bulk of the work. If such alternative approaches are selected, any resulting solicitations shall be issued in accordance with the competition requirements under FAR part 6;
(ii) Make a written determination that the contracting approach selected is in the best interest of the Government; and
(iii) Document the basis for such determination.
(3) Contract actions awarded pursuant to subparts 19.5, 19.8, 19.13, 19.14, or 19.15 are exempt from the requirements of this paragraph (h) (see section 1615 of the National Defense Authorization Act for Fiscal Year 2014 (Pub. L. 113-66)).
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to accommodate the recent merger of the Architect-Engineer Contract Administration Support System (ACASS) and the Construction Contractor Appraisal Support System (CCASS) modules within the Contractor Performance Assessment Reporting System (CPARS) database.
Mr. Curtis E. Glover, Sr., Procurement Analyst, at 202-501-1448, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite FAC 2005-82, FAR Case 2014-010.
DoD, GSA, and NASA published a proposed rule in the
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:
There are no changes made in the final rule as a result of the public comments.
For clarity, the final rule adds a reference to the past performance thresholds at paragraphs (b) through (f) of section 42.1502.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD, GSA, and NASA certify that this final rule will not have a significant economic impact on a substantial number of small entities within the
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR part 42 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
(a)
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
This document makes amendments to the Federal Acquisition Regulation (FAR) in order to make editorial changes.
The Regulatory Secretariat Division (MVCB), 1800 F Street NW., 2nd Floor, Washington, DC 20405, 202-501-4755, for information pertaining to status or publication schedules. Please cite FAC 2005-82, Technical Amendments.
In order to update certain elements in 48 CFR parts 4, 22, 39, and 52 this document makes editorial changes to the FAR.
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 4, 22, 39, and 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
(a) Agencies shall cooperate with, and encourage contractors to use to the fullest extent practicable, the DOL Employment and Training Administration (DOLETA) at
(v)
The revision reads as follows:
(e) * * *
(1) * * *
(v) 52.222-26, Equal Opportunity (APR 2015) (E.O. 11246).
(a) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses that are incorporated by reference:
(1) The clauses listed below implement provisions of law or Executive order:
(i) 52.222-3, Convict Labor (JUN 2003) (E.O. 11755).
(ii) 52.222-21, Prohibition of Segregated Facilities (APR 2015).
(iii) 52.222-26, Equal Opportunity (APR 2015) (E.O. 11246).
(iv) 52.225-13, Restrictions on Certain Foreign Purchases (JUN 2008) (E.O.s, proclamations, and statutes administered by the Office of Foreign Assets Control of the Department of the Treasury).
(v) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553).
(vi) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Pub. L. 108-77, 108-78 (19 U.S.C. 3805 note).
(2) Listed below are additional clauses that apply:
(i) 52.232-1, Payments (APR 1984).
(ii) 52.232-8, Discounts for Prompt Payment (FEB 2002).
(iii) 52.232-11, Extras (APR 1984).
(iv) 52.232-25, Prompt Payment (JUL 2013).
(v) 52.232-39, Unenforceability of Unauthorized Obligations (JUN 2013).
(vi) 52.232-40, Providing Accelerated Payments to Small Business Subcontractors (DEC 2013).
(vii) 52.233-1, Disputes (MAY 2014).
(viii) 52.244-6, Subcontracts for Commercial Items (APR 2015).
(ix) 52.253-1, Computer Generated Forms (JAN 1991).
(b) The Contractor shall comply with the following FAR clauses, incorporated by reference, unless the circumstances do not apply:
(1) The clauses listed below implement provisions of law or Executive order:
(i) 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (JUL 2013) (Pub. L. 109-282) (31 U.S.C. 6101 note) (Applies to contracts valued at $25,000 or more).
(ii) 52.222-19, Child Labor—Cooperation with Authorities and Remedies (JAN 2014) (E.O. 13126). (Applies to contracts for supplies exceeding the micro-purchase threshold).
(iii) 52.222-20, Contracts for Materials, Supplies, Articles, and Equipment Exceeding $15,000 (MAY 2014) (41 U.S.C. chapter 65) (Applies to supply contracts over $15,000 in the United States, Puerto Rico, or the U.S. Virgin Islands).
(iv) 52.222-35, Equal Opportunity for Veterans (JUL 2014) (38 U.S.C. 4212) (Applies to contracts of $100,000 or more).
(v) 52.222-36, Equal Employment for Workers with Disabilities (JUL 2014) (29 U.S.C. 793) (Applies to contracts over $15,000, unless the work is to be performed outside the United States by employees recruited outside the United States). (For purposes of this clause, “United States” includes the 50 States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, and Wake Island.)
(vi) 52.222-37, Employment Reports on Veterans (JUL 2014) (38 U.S.C. 4212) (Applies to contracts of $100,000 or more).
(vii) 52.222-41, Service Contract Labor Standards (MAY 2014) (41 U.S.C. chapter 67) (Applies to service contracts over $2,500 that are subject to the Service Contract Labor Standards statute and will be performed in the United States, District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, Johnston Island, Wake Island, or the outer Continental Shelf).
(viii)(A) 52.222-50, Combating Trafficking in Persons (MAR 2015) (22 U.S.C. chapter 78 and E.O 13627) (Applies to all solicitations and contracts).
(B) Alternate I (MAR 2015) (Applies if the Contracting Officer has filled in the following information with regard to applicable directives or notices: Document title(s), source for obtaining document(s), and contract performance location outside the United States to which the document applies).
(ix) 52.222-55, Minimum Wages Under Executive Order 13658 (DEC 2014) (Executive Order 13658) (Applies when 52.222-6 or 52.222-41 are in the contract and performance in whole or in part is in the United States the 50 States and the District of Columbia).
(x) 52.223-5, Pollution Prevention and Right-to-Know Information (MAY 2011) (E.O. 13423) (Applies to services performed on Federal facilities).
(xi) 52.223-15, Energy Efficiency in Energy-Consuming Products (DEC 2007) (42 U.S.C. 8259b) (Unless exempt pursuant to 23.204, applies to contracts when energy-consuming products listed in the ENERGY STAR® Program or Federal Energy Management Program (FEMP) will be—
(A) Delivered;
(B) Acquired by the Contractor for use in performing services at a Federally-controlled facility;
(C) Furnished by the Contractor for use by the Government; or
(D) Specified in the design of a building or work, or incorporated during its construction, renovation, or maintenance).
(xii) 52.225-1, Buy American—Supplies (MAY 2014) (41 U.S.C. chapter 67) (Applies to contracts for supplies, and to contracts for services involving the furnishing of supplies, for use in the United States or its outlying areas, if the value of the supply contract or supply portion of a service contract exceeds the micro-purchase threshold and the acquisition—
(A) Is set aside for small business concerns; or
(B) Cannot be set aside for small business concerns (see 19.502-2), and does not exceed $25,000).
(xiii) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations (MAY 2014) (42 U.S.C. 1792) (Applies to contracts greater than $25,000 that provide for the provision, the service, or the sale of food in the United States).
(xiv) 52.232-33, Payment by Electronic Funds Transfer—System for Award Management (JUL 2013) (Applies when the payment will be made by electronic funds transfer (EFT) and the payment office uses the System for Award Management (SAM) database as its source of EFT information.)
(xv) 52.232-34, Payment by Electronic Funds Transfer—Other than System for Award Management (JUL 2013) (Applies when the payment will be made by EFT and the payment office does not use the SAM database as its source of EFT information.)
(xvi) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (FEB 2006) (46 U.S.C. App. 1241) (Applies to supplies transported by ocean vessels (except for the types of subcontracts listed at 47.504(d).)
(2) Listed below are additional clauses that may apply:
(i) 52.209-6, Protecting the Government's Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment (AUG 2013) (Applies to contracts over $30,000).
(ii) 52.211-17, Delivery of Excess Quantities (SEP 1989) (Applies to fixed-price supplies).
(iii) 52.247-29, F.o.b. Origin (FEB 2006) (Applies to supplies if delivery is f.o.b. origin).
(iv) 52.247-34, F.o.b. Destination (NOV 1991) (Applies to supplies if delivery is f.o.b. destination).
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Small Entity Compliance Guide.
This document is issued under the joint authority of DOD, GSA, and NASA. This
May 7, 2015.
For clarification of content, contact the analyst whose name appears in the table below. Please cite FAC 2005-82 and the FAR case number. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755.
Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these rules, refer to the specific item numbers and subjects set forth in the documents following these item summaries. FAC 2005-82 amends the FAR as specified below:
DoD, GSA, and NASA are issuing a final rule adopting the interim rule published July 25, 2014, without change. The interim rule amended the FAR to implement final rules issued on September 24, 2013, by the Office of Federal Contract Compliance Programs at the Department of Labor (DOL) relating to equal opportunity and affirmative action for veterans and individuals with disabilities. The DOL rules provide clarification of mandatory listing of employment openings, the posting of notices, making notices accessible to persons with disabilities, and requiring nondiscrimination statements in contractor solicitations or advertisements for employees. The FAR clauses were restructured in the interim rule to provide a citation to the applicable clause in the DOL regulations and include a statement that summarizes contractors' top level obligations under each clause. There is no significant impact on small entities imposed by the FAR rule.
This final rule amends the FAR to implement section 802 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239), which provided for additional requirements relative to the review and justification of pass-through contracts. In those instances where an offeror for a contract, task order, or delivery order informs the agency pursuant to FAR 52.215-22 of their intention to award subcontracts for more than 70 percent of the total cost of work to be performed under the contract, task order, or delivery order, section 802 requires the contracting officer to (1) consider the availability of alternative contract vehicles and the feasibility of contracting directly with a subcontractor or subcontractors that will perform the bulk of the work; (2) make a written determination that the contracting approach selected is in the best interest of the Government; and (3) document the basis for such determination. These statutory requirements are being implemented in FAR 15.404-1(h) and for consistency purposes are applicable to all of the agencies subject to the FAR even though section 802 only applied to the Department of Defense, the Department of State, and the United States Agency for International Development.
Because the rule augments the current responsibilities of contracting officers relative to the review and justification of pass-through contracts and does not initiate or impose any new administrative or performance requirements on contractors, and specifically exempts contract actions awarded pursuant to FAR subparts 19.5, 19.8, 19.13, 19.14, or 19.15, there is no impact on small businesses.
This final rule changes the language at FAR 42.1502 to accommodate the recent merger of the Architect-Engineer Contract Administration Support System (ACASS) and the Construction Contractor Appraisal Support System (CCASS) as modules within the Contractor Performance Assessment Reporting System (CPARS) database. This action will standardize the past performance reporting requirements under the CPARS database. The ACASS and CCASS modules were merged into CPARS on July 1, 2014.
This change does not place any new requirements on small entities.
Editorial changes are made at FAR 4.905(a), 22.102-2(a), 39.101(a)(1)(ii), 52.212-4(v), 52.212-5(b)(36)(i), (b)(36)(ii), (b)(39)(ii), and (e)(1)(v), 52.213-4(a) and (b), and 52.223-16.
| 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 |